C-184/73

and

H. W. Kaufmann, resident at Neuwied, Federal Republic of Germany,

on the interpretation of Article 11 (2) of Regulation No 3 of the Council concerning social security for migrant workers (OJ No 30, 16. 12. 1958, p. 561/58),

THE COURT

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

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

The judgment making the reference and grounds, each relating to one of three the written observations submitted under different periods: Article 20 of the EEC Statute of the (a) for the period prior to 4 December Court may be summarized as follows: 1970, the insured could have no claim to the grant of benefits for incapacity to work because, having been taken ill on 4 December 1969, I — Facts and procedure he had not yet fulfilled the condition as to continuous incapacity for 52 Mr H. Kaufmann, a German national, weeks (Article 19 of the WAO). born on 9 May 1906, spent the whole of his working life in Germany, except for (b) for the period after 1 May 1971, he the period from 1 October 1928 to 30 was similarly unable to claim, September 1935 when he was employed because he attained the age of 65 on in the Netherlands. 9 May, and the benefit on account Taken ill on 4 December 1969 and of incapacity to work comes to an end at that age under Article 49 of incapable of work on this account, since the WAO. 5 December 1969 he has been in receipt of sickness benefit (Krankengeld) under (c) for the intermediate period (4 Clause 183 (2) and (3) of the December 1970 to 1 May 1971) he Reichsversicherungsordnung of 19 July was prevented from benefiting from 1911. With effect from 1 January 1970 the WAO pension because he was he was granted an invalidity pension. still in receipt of sickness benefit However, since the amount of this (although reduced) in the Federal pension was less than his sickness Republic, supplementing his German benefit, he continued to receive the invalidity pension, and this, by the latter, the pension being considered as combined operation of Article 11 (2) included in the sickness allowance. of Regulation No 3 and of Article 20 (Clause 183 (5) of the Reichsversiche­ of the WAO, prevented him from rungsordnung). benefiting under the latter law. Relying on his period of employment in Concerning this last period, the Nieuwe the Netherlands, Mr Kaufmann applied Algemene Bedrijfsvereniging pointed out to the Nieuwe Algemene Bedrijfsver­ that since it was by virtue of Articles 27 eniging (the Dutch social security and 28 of Regulation No 3 that the institution) for the grant of benefits for insured was able to avail himself of the incapacity to work under the WAO, it was equally right to apply Netherlands law on invalidity insurance Article 11 (2) of the same Regulation, (wet op de arbeidsongeschiktheids­ whereby 'Provisions in the legislation of verzekering, hereinafter called WAO). one Member State for reduction or When his application was rejected by suspension of benefit in cases of a decision dated 17 March 1971 he overlapping with other social security appealed against that decision to the benefits or other income, or because of Raad van Beroep of Amsterdam. gainful employment, shall apply to a Before this tribunal, the social security beneficiary even in respect of benefits institution supported its refusal on three acquired under a scheme in another

van Beroep of Amsterdam, which by The order making the reference was judgment dated 9 November 1971, registered at the Court on 21 November declared the appeal wellfounded, annulled the decision dated 17 March 1973. The Commission of the European Communities and the Nieuwe Algemene 1971, and held that the social security Bedrijfsvereniging submitted written institution must grant Mr Kaufmann the observations. benefits due under the WAO. Upon hearing the report of the The Bestuur van de Nieuwe Algemene Judge-Rapporteur, and the opinion of Bedrijfsverenigung brought an appeal the Advocate-General, the Court decided against that judgment before the that it was not necessary to order any Centrale Raad van Beroep, which, taking preliminary inquiries. the view that a question was raised as to the interpretation of a Community act, by order dated 2 November 1973, referred the following questions to the II — Observations submitted Court of Justice: under Article 20 of the EEC Statute of the Court of 1. Does the phrase 'legislative provisions of a Member State for reduction or Justice suspension of benefit in cases of overlapping with other social security A — Observations of the Commission benefits' in the said Article [Article 11 The Commission notes firstly that, since (2) of Regulation No 3] include a the Dutch law on incapacity to work is provisions conferring entitlement to a based on risk, the respondent is entitled grant of benefit for incapacity to to benefit under the WAO only because, work only when there is no longer a claim to sickness benefit? under Article 27 of Regulation No 3, as interpreted by the Court of Justice in its 2. Do the words 'shall apply to a judgment dated 13 July 1966 (Case 4/66 beneficiary' have the effect of Hagenbeek v Raad van Arbeid of extending national legislation of a Arnhem, Rec. 1966, p. 618), his cover Member State providing for the under German law at the time the risk suspension or reduction of benefit for materialized can be assimilated to cover incapacity to work by the amount of under Dutch law.

The Commission takes the contrary view As regards the second question, the that it is really a nonoverlapping clause relevant point, in the Commission's within the meaning of Article 11, but view, is whether the Dutch institution that at the same time account must be can take advantage of Article 11 (2) to taken of the fact that Article 11 of assimilate sickness benefit payable under Regulation No 3 in combination with German law to sickness benefit payable Article 9 (2) of Regulation No 4, which under a Dutch law (Ziektewet) expressly named in Article 20 of the WAO in lays down detailed rules of application providing for apportionment of benefits order to apply that Article. On a literal with reduction or suspension of interpretation of Article 11 (2) which payments, covers not only complete provides for the application of legislative suspension but also the possibility of provisions of a Member State for benefits merely being reduced. Article 20 reduction or suspension 'even in respect of the WAO does not therefore have the of benefits acquired under a scheme in absolute effect attributed to it by the another Member State', it seems that the Dutch institution and it is not possible purpose of this provision would be defeated if the intended extension were to exclude the possibility that Mr Kaufmann is entitled to a pension, albeit to be limited merely to the case where reduced. Even if it is admitted that on the national provision against overlapping the literal interpretation of Article 20 of is expressed in general terms, to the exclusion of those cases where the various the WAO., there is a condition precedent rather than a non-overlapping clause, the benefits which may not overlap are Dutch expression 'toekenning' covering expressly named by reference to the the recognition of entitlement to benefit national legislation alone. The appli­ rather than the actual provision of it, it cation of Community regulations cannot seems nevertheless (in the Commission's depend upon the form given to the view) that the purpose of Article 20 of national legislative provisions. the WAO is to avoid the overlapping of The third question asks whether, in sickness benefit and the benefit for reducing or suspending a benefit, it is the incapacity to work, more particularly in initial amount of the benefit payable view of the facts that the WAO is based under the legislation of another Member on risk and that at the end of the waiting State, where this provides for reduction period of 52 weeks, during which the or suspension, which must be taken into insured is paid sickness benefit, he account, or whether it is the amount receives the allowance in its entirety remaining after this latter benefit has according to his degree of incapacity. itself been reduced in consequence of the Although, in view of the internal grant of another benefit payable under coherence of national schemes, the the legislation of this same Member

State. In the absence of a contrary treatment, aggregation of qualifiying indication, bearing in mind the fact that periods and payment of benefits abroad. the reduced benefit can be considered as complementing the invalidity pension B — Observations of the Nieuwe and that Article 9 (2) of Regulation No 4 Algemene Bedrijfsvereniging seeks to prevent the application of non-overlapping clauses from depriving As regards the first question the Nieuwe insured persons of their rights, it seems Algemene Bedrijfsvereniging considers that the solution most favourable to the that the purpose of Article 11 (2) of person concerned should be adopted and Regulation No 3 is to bring into play the that only the amount actually received provisions intended to prevent the by the latter should be taken into overlapping of benefits regarded by the account. national legislation of a Member State as undesirable, even in the case of benefits The Commission finally, bearing in mind acquired under the legislation of another the Court's judgment of 10 December Member State. 1969 (Case 34/69, Caisse d'assurance The expression 'provisions for reduction vieillesse des travailleurs salaries de Paris or suspension' therefore covers, in v ]eanne Duffy, Rec. 1969, p. 597), addition to provisions for reduction or concerning the interpretation of Article suspension of benefits actually paid, also 11 (2) of Regulation No 3, examines the those provisions which fix the time from question whether the Dutch social which a benefit arising only upon the security institution is correct in applying cessation of another benefit becomes this provision in the present case. The payable, and even those which fix the Duffy judgment made it clear that time at which the right to benefit may limitations can only be imposed upon arise when that depends upon another workers as a counterweight to the benefit ceasing to be paid. advantages which they derive from The

In the As regards the second question, the Commission's view Article 11 (2) of Nieuwe Algemene Bedrijfsvereniging Regulation No 3 and Article 12 (2) of considers that the answer to be given is Regulation No 1408/71 (OJ No L 149, 5 to be found in the actual wording of July 1971, p. 1) are operative only where Article 11 (2) of Regulation No 3, Member States have not concluded a particularly the phrase 'even in respect bilateral agreement prior to the coming of benefits under a scheme in another into force of the said Regulations, since Member State'.

BEDRIJFSVERENIGING v KAUFMANN

benefits granted to workers and the benefit has expired is that the sickness limitations which can be imposed. benefit can be considered as complete The Nieuwe Algemene Bedrijfsver­ and adequate compensation, not eniging then examines the condition requiring any supplement. Under the imposed by the Court in the Duffy legislation of each Member State it judgment on applying the limitations ought similarly to be considered as provided for under Article 11 (2) of compensation as adequate as possible for Regulation No 3, namely that these the loss of wages or salary in the country limitations are applicable to insured where the employee works, which would persons only if they are in receipt of exclude any supplementary benefit under benefits acquired by the application of Dutch law under the heading of this same Regulation. This is certainly so insurance against incapacity to work. in the present case, despite the existence The Nieuwe Algemene Bedrijfsver­ of a Regulation of Public Administration eniging answers the third question by (Algemene Maatregel van Bestuur) saying that if the result of Article 20 of enacted under Article 52 of the WAO the WAO is to suspend the entitlement which provides for reductions in case of to provision of the benefit, it is irrelevant overlapping of Dutch benefits under the whether the sickness benefit, the WAO with invalidity benefits paid by a payment of which has this suspensive foreign country. This Regulation is not effect, is being paid in full or only in applicable in the present case because it part. deals with the overlapping of benefits already granted, whereas in the case of In the course of the oral procedure on Mr Kaufmann the benefits were not yet 27 March 1974, the Commission, payable. represented by its Legal Adviser, Mr Bayens, assisted by Miss Jonczy, referred The reason that, under the WAO, to its written memorandum. benefit is not granted under the heading of insurance against incapacity to work The Advocate-General delivered his until the time when the right to sickness opinion on 27 March 1974.

4 Article 11 (2) of Regulation No 3 covers all national legislative provisions for reduction or suspension of benefit intended to prevent overlapping, without distinction as to whether the provisions concern the entitlement to benefit or the provision thereof.

5 A provision of national law intended to prohibit the simultaneous receipt of both sickness benefit and benefit on account of incapacity to work accordingly constitutes a provision for suspension or reduction within the meaning of the above mentioned Article 11 (2).

6 It is for the national judge to decide whether, in the present case, such a risk of overlapping exists.

7 The second question asks, in substance, whether the fact that a national provision against overlapping describes the sickness benefit which may not overlap with benefit on account of incapacity to work by its typically national designation, renders this clause inapplicable to the recipient of sickness benefit granted under the legislation of another Member State.

8 The answer to this question must enable the national court to determine whether Article 20 of the WAO, which precludes the receipt of the benefit provided for by that law, so long as the insured is in receipt of the sickness benefit provided for by Dutch law under a specific name (ziekengeld), applies to the recipient of sickness benefit provided for by German law (Krankengeld) so that for the purposes of the said Article 20 of the WAO the German 'Krankengeld' is assimilated to the Dutch 'ziekengeld'.

9 In the light of Articles 48 to 51 of the Treaty, Article 11 (2) of Regulation No 3 is the counterweight to the advantages which Regulations Nos 3 and 4 procure for workers by enabling them to claim benefit simultaneously under the social security laws of several Member States, and its purpose is to prevent them deriving from that claim advantages which the national legislation considers excessive.

15 Such an extension, however, is only possible in so far as the two benefits assimilated are genuinely comparable, particularly as regards the possibility of their overlapping.

16 The third question asks whether, in applying the national provision against overlapping, the expression 'benefits acquired under a scheme in another Member State' used in Article 11 (2) of Regulation No 3 must be understood to mean the entire benefit to which the recipient is entitled or only the benefit actually paid to him after its reduction, in conformity with the law of that other Member State, by the amount of benefit granted under another social security law.

JUDGMENT OF 15. 5. 1974 — CASE 184/73

17 It must be remarked that the answer to this question can only affect non-overlapping provisions that reduce benefit and not those which suspend the grant.

18 It is for the national judge to decide the category under which Article 20 of the WAO falls.

19 With this qualification, the answer to this question is to be found in the basic purpose of Article 11 (2) of Regulation No 3, which imposes on workers enjoying certain social security advantages, limitations corresponding to the said advantages.

in answer to the questions referred to it by the Centrale Raad van Beroep by judgment of that court dated 2 November 1973,

BEDRIJFSVERENIGING v KAUFMANN

hereby rules:

1. A provision of national law intended to forbid the simultaneous receipt of sickness benefit and benefit from insurance against incapacity to work constitutes a provision for suspension or reduction within the meaning of Article 11 (2) of Regulation No 3.

2. The expression 'benefits acquired under a scheme in another Member State' cannot be limited merely to the case where the provision against overlapping is expressed in terms covering all benefits in general, whether acquired under the scheme in other Member States or under that of the State concerned.

3. The expression 'benefits acquired under a scheme in another Member State' can only mean the amount actually paid as assimilated benefit.

DELIVERED ON 27 MARCH 1974

My Lords, the Treaty, which required the Council to 'adopt such measures in the field of Your Lordships will remember that until social security as are necessary to the entry into force, in September 1972, provide freedom of movement for of Regulations (EEC) No 1408/71 and workers' and 'to this end' to 'make (EEC) No 574/72 of the Council the arrangements to secure for migrant social security of migrant workers within workers and their dependants: the Community was mainly governed by Regulations No 3 and No 4 of the (a) aggregation, for the purpose of Council, of 25 September and 3 acquiring and retaining the right to December 1958 respectively. These had benefit and of calculating the been adopted pursuant to Article 51 of amount of benefit, of all periods