C-16/72

JUDGMENT OF 16. 11. 1972 — CASE 16/72

4. For the purpose of acquiring a right to are not bound to take into account social security benefits, social security affiliation periods completed in third organizations in the Member States countries.

In Case 16/72

Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Bundessozialgericht (Social Security Court) Kassel for a preliminary ruling in the action pending before that court between

Allgemeine Ortskrankenkasse Hamburg,

and

JUDGMENT

Issues of fact and of law

I — Facts and procedure organization), the defendant in the main action, the reimbursement of expenses The facts and procedure may be summar­ incurred as a result of prolonged hospital ized as follows: treatment for contagious tuberculosis re­ quired by the daughter of Mr Primo Primus, The Allgemeine Ortskrankenkasse Ham­ an Italian national.

burg (local sickness insurance fund), the By the time when Mr Primus s daughter plaintiff in the main action, is claiming fell ill in May 1965, her father had contri­ from the Landesversicherungsanstalt buted to a pension insurance scheme over Schleswig-Holstein (a pension insurance the following periods:

ORTSKRANKENKASSE HAMBURG v LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN

— 17 weeks in Italy—1953/1954, By order of 1 March 1972 received at the Court Registry on 24 April 1972 the — 8 months in Luxembourg—1955, Bundessozialgericht decided to stay the proceedings and requested the Court of — 10 months in the Federal Republic of Justice under Article 177 of the EEC Treaty Germany—1962, to give a preliminary ruling on the following questions: — 116 weeks in Italy—1962/1964,

JUDGMENT OF 16. 11. 1972 — CASE 16/72

In fact, Article 1244a of the RVO does not provide In accordance with Article 20 of the that a sick person must be wholly or Protocol on the Statute of the Court of partially incapable of working or that a Justice of the European Communities risk of such incapacity must exist. The fact written observations were submitted by that the obligation to pay benefits, which the Landesversicherungsanstalt Schleswig- is incumbent upon the pension insurance Holstein, represented by its Director, organizations, is dependent upon the Mr Koke, the Bundesverband der Orts affiliation of the individual concerned to krankenkassen, represented by Mr Schlüter the statutory pension insurance scheme and Mr Wortmann, Abteilungsdirektoren, only serves to delimit the competence of the Italian Government, represented by its the organization.

The Rapporteur and the views of the Advocate- convention signed between Italy and General, the Court decided not to hold Switzerland is based upon the principle of any preparatory inquiry. reciprocity and this principle cannot be By order of 13 July 1972 the Court joined invoked within the Federal Republic of the present case to Cases 14/72 and 15/72 Germany. for the purpose of the oral procedure. I he Bundesverband der Ortskranken kassen, the Italian Government and the 2. Observations of the Bundesverband der Commission presented oral argument at Ortskrankenkassen at the hearing on 4 October 1972. The Advocate-General delivered his The Bundesverband der Ortskrankenkassen opinion at the hearing on 19 October 1972. (Federal Association of Local Sickness

Insurance Funds) rejects the so-called principle of the laternative nature of the 'social scourge' theory, which forms the social assistance (cf. Article 2 of the BSHG), basis of the considerations of the Bundes that is, that in theory the assistance is only sozialgericht set out in its order referring provided when the person concerned the matter. This theory tends to ignore the cannot receive it from other sources, in fact that tuberculosis is an illness which, particular, from institutions paying other since social insurance was instituted in social benefits, and his financial circum Germany, has been dealt with by the social stances must also be taken into account. insurance organizations within the context Although, under Article 59 of this law, the of the tasks assigned to them, where an social assistance institution is always bound insured person suffers from this illness. to pay the benefit, the organization which At the most, the Bundessozialhilfegesetz actually bears this obligation must re (Federal Law on Social Assistance) (BSHG) imburse the institution with the expenses of 30 June 1961, to which the Bundes which it was forced to incur.

3. Observations of the Commission maintaining, considerably improving or re-establishing such employment as a result of the measures provided for. It is on the A — The first question basis of this last feature that the Bundes sozialgericht believes that the provisions (a) The Commission observes that before of Articles 26 and 27 of Regulation No 3 the entry into force of the law of 1959 may be inapplicable. providing for social assistance in cases of The Commission observes that, if the tuberculosis, social insurance organizations insurance periods completed in Germany acted—as they still do today in order to are considered alone, none of the conditions avoid cases of invalidity (Articles 1236 et provided for in Article 1244a (2) of the seq. of the RVO, as amended)—on the basis RVO is satisfied in the main action.

JUDGMENT OF 16. 11. 1972 — CASE 16/72

The and invalidity benefits, including benefits prevention and cure of illness and disease awarded for the purpose of maintaining held a predominant place in the earlier or improving earning capacity, and family regulations as the typical concerns of social allowances. The Bundessozialgericht ack security. It is true that, in the context of nowledges that, in any event, contagious Article 1244a, it is not easy to differentiate tuberculosis requiring treatment constitutes between measures intended to maintain or an 'illness' which also frequently gives rise improve earning capacity and measures to a risk of 'invalidity'. A provision of concerning invalidity.

Although it is true that of powers between the social assistance the differences between the standard type organizations and the social security of social assistance and the legislation on organizations in the fact that Article 1244a social security are becoming less and less of the RVO refers to a concept of social clear in all the Member States, in a case security law, that is, to the concept of the in which a benefit is, first, subject to 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 pension 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 (c) The question whether Regulation No 3 be denied in quite special circumstances. contains a rule enabling the aggregation, This is confirmed by the fact that Article in the main action, of the insurance 2(3) of Regulation No 3 is a provision periods completed in the different which lays down exceptions and must, Member States therefore, be strictly interpreted.

ORTSKRANKENKASSE HAMBURG v LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN

Furthermore, as benefits. The Commission observes that, regards Type A benefits, Article 38 of to a large extent, both France and Italy Regulation No 1408/71 provides that the apply the criteria governing sickness in aggregation of insurance periods in order surance to the fight against tuberculosis. to acquire a right to invalidity benefits takes In the light of the difficulties inherent in place without any pro rata apportionment drawing a distinction between the two being made. The aggregation of the categories of benefits (those provided for insurance periods constitutes one of the in respect of invalidity and those in respect basic features of Regulation No 3 which of sickness), the Commission considers that must, therefore, in cases of doubt, be it is expedient to consider the problem of interpreted in line with an application of the aggregation of the insurance periods this principle. not only from the point of view of Articles It is also clear from the terms of Article 26 and 27 which deal with invalidity, but 2(l)(b) of Regulation No 3, which ex also on the basis of those provisions of pressly includes in the scope of this regula Regulation No 3 which concern sickness, tion benefits which are awarded for the in particular since the Bundessozialgericht purpose of maintaining or improving itself considers that Articles 26 and 27, to earning capacity, and Article 26(1) of the which it expressly refers, are only applicable same regulation, which stipulates that the by analogy and wonders whether a general provisions of Chapter 3 shall only apply principle is contained in these articles. 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) show that the principle of aggregation need The Commission observes that, even if the not necessarily be associated with the provision in Article 1244a of the RVO were principle of pro rata apportionment.

For the its statements concerning Annex F to application of Chapter 2 of Head III of Regulation No 3. Moreover, in any event Regulation No 3 it is sufficient for the insurance periods of Type B exist in the re-establishment or improvement of the other Member States. This fact is itself earning capacity of a tuberculosis sufferer sufficient to justify the application of to be only one of the objectives sought. 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 appor improving earning capacity does not arise tioned pro rata temporis, nor the fact that (for example, because the age-limit has the amount of these benefits is not calcu been reached, or becuase he is a total

invalid) Article 26 of Regulation No 3 is October 1972 for the application of the no longer applicable, but it is then necessary provisions concerning sickness. to consider the extent to which the pro visions concerning the benefits payable in B — The second question case of sickness (Article 16 et seq. of Regulation No 3) make it necessary to The Commission considers that the second take into account the insurance periods question must be answered in the negative, completed in other Member States. since, under Article 227 of the Treaty, the area of territorial aplication of Regulations (e) Aggregation on the basis of Article 16 Nos 3 and 4 is limited to the Member et seq. of Regulation No 3 States of the Community.

linked to an interruption in the insurance the objective of bringing about the free periods of less than one month, will only movement of workers within the Com cease to apply to workers and members munity. of their families after the entry into force of Regulation No 1408/71 on 1 October 4. Observations submitted by the Govern 1972. ment of the Italian Republic Thus, the abovementioned provision of Regulation No 3, which is still in force, The Italian Government observes that the appears to preclude the aggregation of the benefits payable as part of the fight against insurance periods in the main action on the tuberculosis are, in a general way, in the basis of Article 16 et seq. nature of social security benefits in that, However, the Commission maintains that first, they are intended to maintain, improve if the main action can only be finally settled and re-establish the earning capacity of a after 1 October 1972, it is necessary to worker who is suffering from tuberculosis, consider the possible consequences in this and this aim generally gives concrete form instance of the elimination by Regulation to another—the protection of public health No 1408/71 of the obligation that the and the fight against tuberculosis which is insurance periods must be uninterrupted. regarded as a social scourge.

regulation. If an application is made to this application of the regulation, a repatriated case of the principles developed by the worker suffering from tuberculosis may Court of Justice in Case 44/65, (Hessische aggregate insurance periods completed in Knappschaft v Maison Singer et Fits [1965] Germany in order to receive in Italy ECR 965) and Case 68/69, (Bundes benefits payable in that country under the knappschaft v Elisabeth Brock [1970] scheme of tuberculosis insurance. ECR 171) concerning the extension of It is essential to avoid the unequal treat Regulation No 3 to cover events which ment of Community workers when applying took place earlier, it does not appear im the principle of the aggregation of insur possible for the periods completed by the ance periods, which forms the basis of applicant to be aggregated as from 1 Regulations Nos 3 and 4.

2 This article was introduced into the RVO by Article 31 of the Law of 23 July 1959 concerning assistance in cases of tuberculosis. In order to 'encourage and ensure the recovery of invalids' in accordance with the first sentence of Article 1(1), this law provided for medical treatment, aid to integration into working life, economic aid and aid of a prophylactic nature to be provided by the social assistance organizations to all persons suffering from tuberculosis to the extent to which they cannot receive the necessary assistance by any other means. On the other hand, by referring solely to those tuberculosis sufferers who are insured with and receive pensions from pension insurance organizations and to their spouses and children, the introduction of Article 1244a into the RVO by the abovementioned Article 31 compelled the pension insurance organizations to provide such persons with, in particular, the necessary medical treatment and a temporary allowance even where, contrary to the general provisions of Article 1236 of the RVO concerning the conditions under which benefits are paid by the pension insurance organizations of workers, there is no reason to fear that the invalid's employment will be jeopardized or where no chance exists of maintaining, improving or re-establishing such employ­ ment by means of the measures provided for.

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 ment and employment of Community workers within the territory of each of the Member States. The pursuit of this objective enables the concept of social security to be regarded as including the aim of preventing the spread of disease, which cannot be regarded as a mere measure of social assistance.

ORTSKRANKENKASSE HAMBURG v LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN

(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 perso nand 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(l)(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 Secondly, the question is also asked whether, in order to acquire a right to the benefits in question, an insurance organization in one of the Member States — the Federal Republic of Germany — must also take into account those periods of contribution which an insurance organization in another Member State, Italy, is bound to consider under a convention on social security concluded between Italy and a third country, Switzerland.

11 For the purpose of implementing the principle of the free movement of workers, Article 51 (a) of the Treaty empowers the Council to make arrangements to secure for workers the aggregation of 'all periods taken into account under the laws of the several countries'. Article 16 of Regulation No 3, which lays down the rules relating to aggregation, only refers to the insurance periods and assimilated periods 'completed under the legislation of each of the Member States'. Article 1 (b) of that regulation states that 'the term 'legislation' shall mean all laws, regulations and other enforceable provisions (dispositions statutaires) present and future of each Member State relating to the social security schemes and branches of social security'.

Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Bundesverband der Ortskrankenkassen, the Italian Government and 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 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

THE COURT

in answer to the questions 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 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;

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.

Registrar (President of Chamber) For the President

OPINION OF MR ADVOCATE-GENERAL MAYRAS

(See Case 14/72, page 1116)