C-73/72
ECLI:EU:C:1973:26
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JUDGMENT OF THE COURT 1 MARCH 1973 1
Hubert Bentzinger v Steinbruchs-Berufsgenossenschaft (preliminary ruling requested by the Landessozialgericht Baden-Württemberg)
'Conflict of laws in the field of social security'
Case 73/72
Social Security for migrant workers — Worker residing within the territory of one Member State — Employment carried on within the territory of several Member States — Legislation applicable — Legislation of the State of residence — Number of employers irrelevant. (Regulation No 3, Article 13 (1) (c))
Article 13 (1) (c) (i) of Regulation No 3 worker is in the service of one or several must be interpreted as meaning that it employers and wherever the event giving applies independently of whether the rise to a right of indemnity took place.
In Case 73/72
Reference to the Court under Article 177 of the EEC Treaty by the Baden- Württemberg Landessozialgericht (Court of Appeal on social questions) for a preliminary ruling in the action pending before that court between
HUBERT BENTZINGER, an engineer, residing at Weil/Rhein,
and
STEINBRUCHS-BERUFSGENOSSENSCHAFT, having its registered office at Hanover,
on the interpretation of Article 13 (1) (c) of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers, as amended by Regulation No 24/64 of the Council of 10 March 1964,
1 — Language of the Case: German.
JUDGMENT OF 1. 3. 1973 — CASE 73/72
THE COURT
composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rap porteur), Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher and C. Ó Dálaigh, Judges,
Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure territory of one Member State shall, in principle, be subject to the legislation of Hubert Bentzinger, an engineer of that State even if they permanently German nationality, resident at reside within the territory of another Weil/Rhein (Federal Republic of Member State. Germany), was employed from 1958 by When Mr Bentzinger brought the matter the company Hupfer GmbH, a sand and before the Sozialgericht (Court on social paving-stone works at Weil/Rhein, and questions) of Freiburg-am-Brisgau, that from 1963, with the agreement of his court, by judgment of 21 March 1972, German employer, by the French annulled that decision on the basis of company Grande Sablière de Saint- Article 13 (1) (c) of Regulation No 3, as Louis, at Saint Louis in Alsace. amended by Regulation No 24/64 of the On 8 September 1970, Mr Bentzinger Council of 10 March 1964 (OJ No 47, p. sustained an accident at work at Grande 746), under the terms of which Sablière de Saint-Louis. wage-earners or assimilated workers By letter dated 24 May 1971, he applied who normally work within the territory to the Steinbruchs-Berufsgenossenschaft of several Member States are, with (Professional Social Insurance Fund for certain exceptions, subject to the quarry accidents) for compensation for legislation of the State within whose the accident in accordance with the territory they reside. Reichsversicherungsordnung (German On appeal by the Steinbruchs-Be Social Security Code). rufsgenossenschaft, the Landessozial This application was rejected by a gericht of Baden-Württemberg (IInd decision dated 27 September 1971, on Senate), sitting at Stuttgart, decided by the ground that Article 12 of Regulation order dated 21 September 1972, to No 3 of the Council of 25 September suspend proceedings until the Court of 1958, concerning social security for Justice had given a preliminary ruling on migrant workers (OJ No 30, p. 561), the following question: provides that wage-earners or assimilat Does Article 13 (1) (c) of Regulation No ed workers employed within the 3 of the Council of 25 September 1958,
BENTZINGER v STEINBRUCHS-BERUFSGENOSSENSCHAFT
concerning social security for migrant application of social security systems to workers, imply that the worker only wage-earners and their families moving carries on his employment in several within the Community (OJ No L 149, p. Member States for a single employer or 2). In fact, the accident upon which the whether this provision equally applies main action is based occurred and the when the worker is in the service of request for a preliminary ruling was several employers in several Member made at a time when Regulation No 3 States? was still in force. In order to anticipate a The order of the Landessozialgericht was subsequent application for a preliminary received at the Court Registry on 11 ruling based on the provisions of October 1972. Regulation No 1408/71, however, it The Commission of the European would appear desirable also to take the Communities submitted its written new rules into account when replying to observations on 19 December 1972, in the question posed. accordance with the provisions of Article 20 of the Protocol on the Statute of the B — As to the merits Court of Justice of the EEC. After hearing the report of the Mr Bentzinger, the defendant in the Judge-Rapporteur and the opinion of the main action, submits that Article Advocate-General, the Court decided to 13 (1) (c) of Regulation No 3 in no way open the oral procedure without any implies that the worker only works in preparatory enquiry. several Member States for a single The oral observations of the defendant employer. This interpretation is in the main action, represented by confirmed by Article 14 (1) (c) (i) of Maître Helmut Aulepp, advocate of the Regulation No 1408/71. The defendant Freiburg-am-Brisgau bar, and the in the main action should be subject to Commission, represented by its Legal the legislation of the Member State Adviser Peter Karpenstein, were made at within whose territory he has his the hearing on 30 January 1973. residence, that is that of the Federal The Advocate-General presented his Republic of Germany. opinion at the hearing on 20 February 1973. The Commission emphasizes the following points in particular:
(a) As to the principle of the applicability of the legislation of a II — Observations submitted single Member State before the Court Rules coordinating the social security systems within the Community should of The written and oral observations necessity determine the legislation submitted before the Court may be applicable in circumstances where the summarized as follows: place of residence and the place of work are not in the same State or where work is carried out in several Member States. A — As to admissibility The problem is to avoid plurality or confusion of benefits and liabilities The Commission is of the opinion that arising from the simultaneous or this request for the interpretation of alternative application of several Regulation No 3 is admissible, although legislations. Regulation No 3 and that Regulation has been repealed, as Regulation No 1408/71 are therefore from 1 October 1972, by Regulation No based on the idea that the worker must 1408/71 of the Council, on the — when it is a case of one and the same
JUDGMENT OF 1. 3. 1973 — CASE 73/72
period — be subject only to the legal State in which the worker is employed in provisions of a single Member State. no way presuppose employment by a single undertaking. (b) As to the system of rules of reference To admit a contrary interpretation When the worker only carries on his would lead to a result which Regulations professional activity in a single Member Nos 3 and 1408/71 intend in actual fact State, he is subject to the legislation of to preclude, that is to say the that State. If, on the other hand, he simultaneous application of two legal carries on his activity, in either a systems, with all the attendant permanent or temporary manner, in complications of a double insurance of different Member States, the system that nature. In the case in question, it is applicable to him varies according to the undoubtedly perfectly possible to say of circumstances of each case. the accident of the applicant that, as it Article 12 of Regulation No 3 establishes happened on the French employer's site, the principle that the worker is subject it should have come under French to the social security system of the accident insurance.
The position Member State within whose territory he becomes doubtful, however, in a case is employed. Article 13 lays down where the accident occurs on the journey certain exceptions to this principle. The between the two employers. Moreover, first concerns 'seconded' workers, that is risks such as illness, disablement or workers who are provisionally sent by maternity are completely indivisible and their employer situated in one Member cannot be imputed to employment by State to the territory of another Member one employer or another.
A general State in order to carry out work on the dissociation from various risk covered by employer's behalf. The second exception social security is not possible; and this concerns workers who form part of the fact excludes an interpretation of Article land, sea, air or inland waterway 13 which leads to the concurrent transport personnel of an undertaking application of several legislations. carrying passengers or goods within the Regulations Nos 3 and 1408/71 are territory of one or more Member States. based on the principle of the uniformity The third exception, contained in of the legislation to be applied in the Article 13 (1) (c) of Regulation No 3, various branches of insurance.
They do concerns cases where a worker not not therefore admit, even in cases where falling within the category mentioned in the imputation of a risk is in itself Article 13 (1) (b) normally carries on possible, of a solution subjecting a his employment within the territory of worker to different national systems in several Member States. This exception respect of the same period. was included in Regulation No 3 by Regulation No 24/64 of the Council. The very wording of Article 13 of Regulation No 3 does not allow of a Article 13 (1) (c) presents several different interpretation. hypotheses. The first clause applies in the case — which forms the basis of the The difference in wording between the main action — of a wage-earner or two paragraphs of Article 13 (1) (c) — the first does not use the word assimilated worker having his residence within the territory of one Member State 'employer' — does not restrict its scope; and working in the State in which he the wording of the first paragraph in no resides as well as in other Member way excludes employment by different States. employers. A closer analysis of the two cases dealt (c) As to the interpretation of Article with in the second paragraph of Article 13 (1) (c) of Regulation No 3 13 (1) (c) reveals that the authors of the The exceptions to the principle of the Regulation intended to elaborate clear application of the law in force in the and simple rules for contentious
BENTZINGER v STEINBRUCHS-BERUFSGENOSSENSCHAFT
situations arising from work in several workers ... whose employment is Member States. Two principles were normally carried on within the territory followed in this respect: on the one of two or more Member States shall be hand, of only ever subjecting the worker subject to the legislation of that Member to the system of a single Member State State within whose territory they have and, on the other hand, of giving their permanent residence, if part of their preference to the system of the Member employment is carried out in that State within the territory of which territory or if they are attached to several of the factors constituting several employers situated within the possible application (employment, resi territory of different Member States or dence, establishment of the employer) to several undertakings having their exist. In principle, the rule of the closest registered office within the territory of and most significant 'connections' different Member States. prevails. When the 'connections' with different This provision makes it quite clear that the number of employers does not have Member States are virtually equal, the Regulation states, in a desire for any bearing. simplification and in order to avoid In conclusion, the Commission suggests complicated rules of demarcation, that the following reply to the question the system of the State in which the posed: worker resides is applicable. Article 14 (1) (c) (i) of Regulation No Article 13 (c) of Regulation No 3 does 1408/71 expresses the same idea as not imply that the worker works in Article 13 (1) (c) of Regulation No 3 in several Member States only for a single clearer terms, by stating that employer.
Grounds of judgment
1 By order dated 21 September 1972, received at the Court Registry on 11 October 1972, the Landessozialgericht for the Baden-Württemberg District referred a question, under Article 177 of the EEC Treaty, relating to the interpretation of Article 13 (1) (c), first paragraph, of Regulation No 3 of 25 September 1958, concerning social security for migrant workers (OJ No 30, p. 561), as amended particularly by Regulation No 24/64 of the Council (OJ No 47, p. 746/64), on whether that provision applies when a wage-earner is in the service of several employers in several Member States.
2 It is seen from the order referring the matter that the question referred to the Court arose in an action pending between an German social security agency, the plaintiff in the main action, and a worker permanently resident in Germany and employed simultaneously in Germany and France who sustained an accident at work.
The German social security agency refused to accept a claim arising from this accident, on the ground that Article 13 (1) (c), first paragraph, of Regulation
JUDGMENT OF 1. 3. 1973 — CASE 73/72
No 3 — which provides that the application of the legislation of the State in which the worker resides in cases where he carries on his employment within the territory of that State and of one or several other Member States — is only applicable subject to the condition that the worker is employed by a single employer, which is not the case here.
3 According to Article 12 of Regulation No 3, the legislation of the Member State within whose territory the worker is employed is, in principle, applicable.
Article 13 lays down several exceptions to this principle, the aim of which is to avoid the general rule under Article 12 leading to the application of several legislations when a worker's places of employment are situated in several Member States.
To this end, the Regulation has, according to circumstance, chosen particular connecting factors distinct from that of the place of employment.
Article 13 (1) (c), first paragraph, envisages more particularly the case of a worker who carries on his employment within the territory of several Member States while at the same time permanently resident within the territory of one of the States in which he is employed.
In this case, the legislation applicable is that of the State within whose territory the worker carries on part of his employment and has residence.
4 This provision imposes no supplementary condition and applies without distinction when the worker is attached to one or several employers and wherever the event giving rise to a right of indemnity took place.
To make the distinctions suggested by the plaintiff in the main action would be contrary not only to the wording of the Regulation, but also to the system of rules established by articles 12 and 13.
Such an interpretation, in the case where a worker is not attached to the same employer, leads to a result which the Regulation wished precisely to avoid, that is to say the application of several legislations.
If such a solution could necessarily be conceived in the case of an accident at work occurring within the territorial limits of application of one of the legislations concerned, it would lead to insoluble difficulties in the case of risks which, by their nature, are not capable of being thus localized.
BENTZINGER v STEINBRUCHS-BERUFSGENOSSENSCHAFT
5 The answer must therefore be that Article 13 (1) (c), first paragraph, of Regulation No 3 must be interpreted as meaning that it applies independently of whether the worker is in the service of one or several employers.
Further, this interpretation accords with Article 14 (1) (c) of Regulation No 1408/71 of the Council (OJ No L 149, p. 2), which entered into force on 1 October 1972 and which, by Article 94 (3) provides that a benefit shall be payable in pursuance of that Regulation even if it relates to an event before the date of its entry into force.
Costs
6 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
As these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the Baden-Württemberg Landessozialgericht, 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 defendant in the main action 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 Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 12 and 13; 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 question referred to it by the Baden-Württemberg Landessozialgericht (IInd Senate) by order dated 21 September 1972, hereby rules:
OPINION OF MR MAYRAS — CASE 73/72
Article 13 (1) (c) (i) of Regulation No 3 concerning social security for migrant workers must be interpreted as meaning that it applies indepen dently of whether the worker is in the service of one or several employers.
Lecourt Monaco Pescatore
Donner Mertens de Wilmars Kutscher Ó Dálaigh
Delivered in open court in Luxembourg on 1 March 1973.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 20 FEBRUARY 1973 1
Mr President, But these Community acts did not Members of the Court, establish a uniform system of European law for migrants; they carried out a The establishment of the Common coordination of national laws.
Market postulated the free movement Accordingly, it was essential for them to within the Community of workers who determine which law would be are nationals of the Member States. The applicable, in particular in cases where implementation of this principle, stated the place of residence and the place of by Article 48 of the Treaty of Rome, work are not located in one and the requires that in the field of social same State or when a worker pursues his security the necessary measures be taken, activity in several Member States. in accordance with the rules established Examination of the question referred to by Article 51 of the Treaty, with a view you for a preliminary ruling by the to instituting a system making it possible Landessozialgericht of Baden- to ensure for migrant workers and their Württemberg, under Article 177 of the families payment of the benefits for Treaty, will allow you to clarify your persons residing within the territories of previous case law in this connection. Member States. Mr Hubert Bentzinger, a German This was particularly the objective of national residing at Weil/Rhein in the Regulation No 3 of the Council which, Federal Republic, divides his profession as from 1 October 1972, has been al activities as an engineer between two substituted by Regulation No 1408/71. companies:
1 — Translated from the French.