C-35/73

In Case 35/73

Reference to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht for a preliminary ruling in the action pending before that court between

Ludwig Kunz of Amsterdam — Netherlands,

plaintiff and respondent,

and

Bundesversicherungsanstalt für Angestellte, Berlin 31,

composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh (Rapporteur), and Lord Mackenzie Stuart, Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure 'Where a pensioner entitled to draw pensions under the legislation of several The facts and procedure may be Member States is permanently resident summarized as follows: in the territory of a Member State in which one of the institutions liable for By order dated 20 October 1972 the Third Senate of the Bundessozialgericht payment of his pension is situated, and he is entitled to benefits in kind under (Federal Social Court) requested the Court of Justice of the European the legislation of that State, the benefits in kind shall be issued to him and the Communities to give a preliminary ruling on the following question: members of his family by the institution of his place of permanent residence, as Is Article 22 of Regulation No 3 of the though he were a pensioner whose Council of the EEC concerning social pension was payable solely under the security for migrant workers to be legislation of his country of permanent interpreted as meaning that the State residence. The cost of such benefits shall where he is resident must issue benefits be borne by the institution of the in kind under pensioners' sickness country of permanent residence.' insurance to a pensioner who is entitled to draw pensions under the legislation of The plaintiff was born on 15 February several Member States and is resident in 1900; he now lives in the Netherlands of one of them, even though this is not which he is a national. On reaching 65 provided for by the law of that State, years of age he obtained an old-age whereas another Member State, under pension from the defendant under a whose legislation the pensioner is also decision of 6 July 1965 as a result of an entitled to a pension, would have had to application which he had made for this issue such benefits? purpose on 12 October 1964. Article 22 (1) of Regulation No 3 reads: Moreover, since 1 February 1965, the

plaintiff has received in the Netherlands dated 16 October 1969 by judgment an old-age pension under the General dated 26 February 1971 and ordered the Old Age Law. Further, it appears from a defendant to grant the plaintiff the certificate given by a Dutch insurance disputed allowance not exceeding the society (Amsterdams Onderling Zieken lawful amount with effect from 1 fonds) that since 1955 he has been February 1965. The Sozialgericht saw in voluntarily insured against sickness by Article 22 of Regulation No 3 no this Society and that he pays on this obstacle to an allowance for the account a monthly premium of 48.75 contribution.

resident. No obligation to grant such a The parties are at issue on the question claim arises under this Regulation; whether Article 381 (4) of the German therefore his insurance against sickness Reichsversicherungsordnung (RVO) af does not fall upon the State where he is fords the plaintiff the right of obtaining the allowance referred to in this resident, as the defendant alleges. Since he has indisputably taken out full provision (Beitragszuschuß) towards the insurance to cover medical expenses he contributions which he pays for the is entitled to the allowance which he sickness insurance which he has taken

of sickness against the social security with Article 24 of EEC Regulation No 4 institutions of the State in whose 'insurance against sickness for pen territory he has his place of residence. sioners' during the plaintiff's residence in The principle can nevertheless be derived the Netherlands was the responsibility of from the first two paragraphs of the the Dutch insurance institution there. Regulation that always only the The plaintiff appealed against this institution of one State, namely the State decision to the Sozialgericht, maintaining where he is resident, is responsible for that the EEC Regulations on which the 'the insurance against sickness of defendant relied were not an obstacle to pensioners', even if the pensioner has no the payment of an allowance towards claim to benefits in kind under the the contributions for sickness cover legislation of that State, so long as he which he was paying in the Netherlands. has such a claim under the legislation of The Sozialgericht rescinded the decision the other State. Therefore the Dutch

of Justice of the European Communities, Rec. 1965, on the 'principle' of Article 22), — and if Article 22 of EEC Regulation II — Observations submit­ No 3 must be interpreted, or completed ted under Article 20 by analogy, in the sense claimed by the of the Statute defendant, then the plaintiff's claim to an allowance from the defendant (Article The observations submitted under 381 (4) of RVO) would be replaced by the Article 20 of the Statute can be obligation imposed on the competent summarized as follows: Dutch institution to provide benefits in kind equivalent to those envisaged by A — The plaintiff the German legislation for pensioners insured against sickness. The request for a preliminary ruling presupposes that the plaintiff is a The Bundessozialgericht adds that the migrant worker. This is not the case question put is not covered by the since the plaintiff did not voluntarily judgment in Case 33/65, Rec. 1965, enter the territory of another Member that this judgment laid down only State (the Netherlands) but did so as a that 'allowances' for contributions in refugee to escape racial or political accordance with Article 381 (4) RVO are persecution. It is on the basis of the not benefits in kind within the meaning periods of employment and insurance of Article 22 of EEC Regulation No 3, completed before his emigration, which and that the present case concerns on were recognized by way of compen­ the other hand the question whether sation for the persecution he had suffered, benefits in kind under the sickness that the defendant accorded him the insurance scheme for pensioners must, benefit of the retirement pension.

Article 381 (4) RVO provides that when in the territory of one of them the cost of he is not subject to compulsory sickness insurance always falls on the insurance and when he must therefore institution of the country of residence, or contribute to a private insurance a whether it is so at least in the case where pensioner shall be entitled correspond the pensioner is entitled to benefits of ingly to an allowance towards the compulsory sickness insurance as a contribution paid for the sickness result of the legal provisions of another

In benefit of a special nature arising from conjunction with Article 23, it prescribes the internal law and does not constitute also when this institution can require a benefit in kind as has already been reimbursement of expenditure which it decided by the Court of Justice of the has made under Article 22, the authority European Communities in the aforemen from which it can reclaim this tioned Judgment 33/65. The State where reimbursement and the amount thereof. he is resident is not bound to assume The regulations, which are very complex this obligation to grant a benefit which in their details, do not give rise to rights is incumbent on the competent insurance in the sense as understood by the institution. defendant except in the cases referred to EEC Regulation No 1408/71, which in paragraphs (5) and (6) where a became binding in its entirety and pensioner or a member of his family applicable in ail Member States on 14 requires treatment in a State other than Tune 1971, establishes a limitation as to that in which the pensioner resides.

No 3. However, according to the benefits as a result of legislation which Commission, the discussion in the applies to them. These provisions, it is original proceedings ranged over a wider true, make a distinction according to field: the controversy is whether Article whether the pensioner is entitled to a 22 (1) alone, or another provision of this pension from a single or several States Article, possibly in conjunction with and according to whether there is or is paragraph (1), permits the conclusion not a right to a pension from the that apart from any consideration of country of residence.

JUDGMENT OF 11. 10. 1973 — CASE 35/73

applicable to him. Whereas Article 27 of this Regulation Where the legislation of the State of is limited to repeating the text of residence — as is the case with the Article 22 (1) of the former Netherlands — does not provide for Regulation, Article 28 provides that compulsory sickness insurance for the pensioner shall receive benefits in pensioners, the institutions of this State kind for himself or for the members are not therefore required to provide, in of his family from the institution of the event of sickness, benefits in kind to the place of residence even when the pensioner who resides in the territory under the legislation of the State in of the said State, or a member of his whose territory he resides he does not

It is not therefore possible to refer to these 'guaranteeing to workers whose condition requires medical care as rules to interpret Regulation No 3. speedy and efficacious a treatment as It is impossible to draw from the case of possible'. If nevertheless the Commission Dekker, 33/65, Rec. 1965, conclusions believes that it must propose a negative permitting a reply to the question reply to the Court of Justice as regards submitted to the Court in the context the question put, it does so essentially of the present case.

KUNZ v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

Grounds of judgment

1 In accordance with Article 177 of the Treaty establishing the EEC, the Bundessozialgericht, by order made on 20 October 1972 and lodged with the Registry on 28 February 1973, has referred to the Court a question on the interpretation of Article 22 of Regulation No 3 of the Council concerning social security for migrant workers.

This question has arisen in an action concerning the application made by the plaintiff in the main action to the Bundesversicherungsanstalt für Angestellte, Berlin, for an allowance provided for in Article 381 (4) RVO towards the contributions which he pays on a voluntary basis to a Dutch society for sickness insurance.

The defendant in the main action rejected this application on the ground that the plaintiff, not being subject to the German sickness insurance scheme, was not entitled to an allowance towards his contributions, and that under Article 22 of Regulation No 3 the sickness insurance of pensioners was the responsibility of the institution in the place of residence, in the case in question a Dutch institution.

2 A declaration is sought as to whether 'Article 22 of Regulation No 3 is to be interpreted as meaning that the State where he is resident must issue benefits in kind under pensioners' sickness insurance to a pensioner who is entitled to pensions under the legislation of several Member States and is resident in one of them, even though this is not provided for by the law of that State, whereas another Member State, under whose legislation the pensioner is also entitled to a pension, would have had to issue such benefits'.

4 Whereas on the one hand Article 22 (5) deals with the indirect entitlement of members of the family of a pensioner to benefits chargeable to the State of their place of residence, when this latter does not coincide with that of the head of household, and on the other hand Article 22 (6) deals with direct entitlement of the pensioner or a member of his family to benefits chargeable to the State of their place of temporary residence, such is not the situation referred to by the question.

The question is whether benefits in kind must be granted even in the case where the legislation in force in the country of residence does not provide for such benefits.

Such an interpretation is not in accord with the text of Article 22 (1).

Moreover there is nothing in any of the other provisions of Regulations Nos 3 and 4 to support this interpretation.

Although Article 17 of Regulation No 3 does not repeat the condition already referred to, it deals with employed persons or those treated as such and not with pensioners.

KUNZ v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the plaintiff 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 of the EEC concerning social security for migrant workers, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Communities, especially Article 20;

OPINION OF MR ROEMER — CASE 35/73

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 Bundessozialgericht by order of that Court dated 20 October 1972, hereby rules:

Article 22 of Regulation No 3 of the Council concerning social security for migrant workers is to be interpreted as meaning that the State where he is resident does not have to issue benefits in kind to a pensioner who is entitled to draw pensions under the legislation of serveral Member States and is resident in one of them, where this is not provided for by the law of that State.

DELIVERED ON 18 SEPTEMBER 1973 1

Mr President, Mr Kunz, the respondent in the appeal Members of the Court, in the main action, a Dutch citizen resident in The Netherlands, has been By order dated 20 October 1972 the since February 1965 (i.e. since attaining Bundessozialgericht referred for a 65 years of age) in receipt of an old age preliminary ruling a question on the pension under the Dutch General Old interpretation of Regulation No 3 Age Law. Moreover, by reason of the concerning social security for migrant fact that before his flight to The workers. The following are the Netherlands he was employed in significant facts. Germany between the years 1921-1938,

1 — Translated from the German.