C-103/75

Article 27 of Regulation No 1408/71 of the retired person to receive, under the refers only to sickness or maternity legislation of another State, a benefit of benefits granted by the competent the type of an allowance towards the institution of the State in which the contribution to a voluntary sickness retired person resides after these risks insurance.

materialize, and cannot affect any right

In Case 103/75

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

WALTER AULICH, living at Eindhoven (Netherlands)

and

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

gives the following

JUDGMENT

Issues of fact

The facts, the procedure and the fund) in Bielefeld ceased on 31 August observations submitted under Article 20 1970. But, with effect from 1 September of the Protocol on the Statute of the 1970, Mr Aulich took out voluntary Court of Justice of the EEC may be sickness insurance with the Eindhovens summarized as follows: Algemeen Ziekenfonds (Eindhoven general sickness fund).

AULICH v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

the EAEC [OJ, English Special Edition, The Sozialgericht declared that the grant of the German allowance towards 27. 3. 1972, p. 14] and by Regulation No 2864/72 of the Council of 19 December sickness insurance contributions could be 1972 [JO L 306, p. 1]) Article 27 of the refused only if the pensioner was, at no regulation provides as follows: or, at least, very little cost to himself, adequately covered for sickness insurance A pensioner who is entitled to draw in another Member State by a sickness insurance institution of that State. pensions under the legislation of two or more Member States and who is entitled Furthermore, the conditions laid down in to benefits in kind under the legislation Article 22 of Regulation No 3 are not of the Member State in whose territory satisfied since Mr Aulich had no right to he resides, taking account where sickness insurance against an insurance appropriate of the provisions of Article institution in his country of origin. 18 and Annex V, shall, with the members of his family, receive such On 25 May 1971, the Bundesver­ benefits from the institution of the place sicherungsanstalt für Angestellte lodged of residence and at the expense of that an appeal before the Landessozialgericht, institution as though he were a pensioner Berlin, against the judgment of the whose pension was payable solely under Sozialgericht, During the proceedings the legislation of the latter State.

JUDGMENT OF 26. 5. 1976 – CASE 103/75

accordance with paragraph 381 (4) of the The order of the Landessozialgericht, RVO supplements the sickness insurance Berlin, was entered at the Court Registry and cannot therefore be granted in the on 29 September 1975. present case. Pursuant to Article 20 of the Protocol on For his part, Mr Aulich contends that the the Statute of the Court of Justice of the contested judgment also remains valid as EEC, written observations were sub­ regards the period from 1 October 1972 mitted by Mr Aulich on 29 October because Regulation No 1408/71 did not 1975, by the Commission of the create any new legal situation and could European Communities on 3 December not, therefore, deprive him of an existing 1975 and by the Government of the right. Netherlands on 10 December 1975.

By order of 13 August 1975, the 9th The Court, on hearing the report of the Chamber of the Landessozialgericht, Judge-Rapporteur and the views of the Berlin, decided, under Article 177 of the Advocate-General, decided to open the EEC Treaty, to stay the proceedings until oral procedure without any preparatory the Court of Justice gave a preliminary inquiry. It nevertheless invited the ruling on the following questions: Government of the Netherlands and the Commission to reply to a question; the Is Article 27 of Regulation No 1408/71 former supplied an answer in writing, the of the Council of the EEC in latter replied at the oral proceedings. conjunction with Annex No V H 1 (a) to be interpreted as meaning that it gives Pursuant to Article 26 (3) of the Rules of rise only to a right to benefit against the Procedure, the President of the Court

II — Written observations sub­ In its judgment of 1 December 1965 in mitted before the Court Case 33/65 (Dekker v Bundesversiche­ rungsanstalt für Angestellte, reference Mr Aulich, the respondent, contends that for a preliminary ruling by the Article 27 of Regulation No 1408/71 Landessozialgericht, Berlin, [1965] ECR cannot usurp the German sickness 901), the Court ruled that the allowance insurance system applicable to old-age or towards sickness insurance contributions retirement pensioners or transfer it to the provided for under Article 381 (4) of the Netherlands on change of residence. RVO is an allowance supplementary to a There is in the Netherlands no free pension and does not constitute a sickness insurance for pensioners. The sickness insurance benefit. It followed, monthly premium to be paid for sickness that, as it was a supplementary benefit for insurance in the Netherlands was F1 those entitled to an old-age pension it 178.10 in 1975 and a substantial increase was, in that case, at the expense of the has been announced for 1976. The (German) institution which provided the German allowance towards sickness pension; since it did not constitute a insurance contributions, at present DM sickness insurance benefit it could not, 115, does not wholly cover the free under the terms of Article 27 of insurance which Mr Aulich would enjoy Regulation No 1408/71 be at the if he lived in Germany, but it represents expense of a Netherlands institution. an improvement in his position. If this allowance were not paid to him his In the terms in which the Landes­ pension would be reduced by the extent sozialgericht made its reference to the of the premium which, in the Court it wrongly adopted a different Netherlands, he has to pay to the view. sickness fund. In its written reply of 24 February 1966 The Government of the Kingdom of the to a question put to it by the Court, the Netherlands takes the view that Mr Government of the Kingdom of the Aulich's circumstances are covered by Netherlands states that since the Article 28 of Regulation No 1408/71 by 'Beitragszuschuß' is a pension contri­ virtue of which he should be entitled, in bution, it is not affected by Article 27. the Netherlands, to benefits in kind at the expense of the Federal Republic of The Commission of the European Germany. At the same time, in view of Communities suggests that in the the fact that, in the Netherlands, an interests of clarity the questions referred old-age pension does not confer by the Landessozialgericht, Berlin, entitlement to benefits in kind, para­ should be re-cast as follows: graph H (1) of Annex V of Regulation — Does Article 27 of Regulation No No 1408/71 introduces a system under 1408/71 give rise only to a right to which, for the purposes of Articles 27 benefit against the sickness insurance and/or 28, the right to benefits in kind is institution of the State of residence or treated as linked with the Netherlands does it wholly replace the provisions pension of the Algemene Ouderdomswet of the domestic law of the other (general law on the aged) for pensioners Member States relating to sickness who satisfy the conditions required for insurance for pensioners?

— Does Article 27, where appropriate, lays down that the institution of the also replace the provisions relating to place of residence is alone competent; it the grant of allowances to confines the right to benefit to a single contributions to a voluntary sickness institution and makes the latter solely insurance subject to contribution by responsible for it. Strictly speaking, the State of residence? Article 27 does not create a right to — Does the provision in Article 27 that benefit: the obligation of the sickness a pensioner shall receive benefits insurance institution of the State of from the institution of the place of residence to grant the benefit is subject residence as though he were 'a to the condition that the pensioner must pensioner whose pension was payable fulfil the conditions laid down under the solely under the legislation of the legislation of his country for entitlement latter State' place the pensioner, as to benefit. As a general rule the right to against the insurance organization of benefit as against the sickness insurance the other Member State, in the same institution of the other Member State position as though he received no would automatically disappear were it not pension from the latter? for the fact that the risk materializes — Is the effect of Article 22 of outside the territory of the other Member Regulation No 3 to be widened by State and this means that one of the Article 27 of Regulation No 1408/71 conditions laid down under national to the extent that, inter alia, it also legislation is not satisfied. impinges on existing rights under national legislation? (b) Neither the wording nor the meaning or objective of Article 27 justify (a) In its first question, the Landes­ the view that it replaces the provisions sozialgericht, Berlin, adopts the view that relating to the grant of allowances Article 27 of Regulation No 1408/71 towards contributions to voluntary sick­ creates rights to benefit against the ness insurance subject to contribution by institution of one Member State and the State of residence. These allowances takes the place of these rights against towards sickness insurance constitute another Member State. This viewpoint neither benefits in kind nor benefits in does not take fully into account either cash but a supplementary privilege for the meaning of Article 27 or its place in those entitled to old-age insurance the system of coordinating sickness benefits. insurance schemes established by the regulation. In so far as it is based on national law, the right to an allowance towards Regulation No 1408/71 coordinates the contributions is subject to the principle national sickness insurance schemes of the maintenance of accrued rights applicable to migrant workers by making defined in the 7th recital of the preamble the 'competent insurance institution, to Regulation No 1408/71 as one of the namely the institution to which the objects of the coordination rules which it insured is affiliated, responsible for introduces; it would, moreover, conflict payment of benefits in cash and, for with Article 10 (1) of the regulation if an practical reasons, makes the institution of insurance institution refused to pay the State of permanent or temporary abroad the allowance towards the

No 1408/71, residence abroad certainly provided by the institution of the State of does not prevent it. residence, even if he is not entitled to these benefits under the legislation of (c) The provision in Article 27 under that State. which a pensioner shall receive benefits from the institution of his place of (e) In the Commission's view the residence as though he were 'a pensioner questions referred should be answered as whose pension was payable solely under follows: the legislation of the latter State' refers to — Article 27 of Regulation No 1408/71 the relationship of the pensioner not does not replace the national with the insurance institution of the legislation of the other Member State other Member State but with the in respect of the grant of allowances insurance institution of the State of towards contributions to a contribu­ residence; its object is to emphasize the tory voluntary sickness insurance exclusive responsibility of the latter scheme in the State of residence. The institution for granting the whole of the provision of Article 27 under which sickness insurance benefits relating to the pensioner shall receive benefits the whole of the insurance periods from the institution of his place of completed by the pensioner. residence as though he were 'a pensioner whose pension was payable (d) Since the answer to the first two solely under the legislation of the questions is in the negative, the last no latter State' refers exclusively to the longer requires to be answered. relationship which exists between the Nevertheless, it may be desirable to state pensioner and the insurance that the widening of the scope of Article institution of the State of residence. 22 of Regulation No 3 effected by Regulation No 1408/71 does not mean any interference with the rights to which III — Oral procedure the pensioner is entitled under the national legislation of the country of the The Commission, represented by its competent institution but that, on the Legal Adviser, Norbert Koch, submitted one hand, under Article 27, he may, its oral observations and its reply to the where appropriate, also receive cash question put by the Court at the hearing benefits from the institution of his place on 25 February 1976. of residence and at the latter's expense and, on the other hand, under Article 28 The Advocate-General delivered his (1) he is in receipt of benefits in kind opinion at the hearing on 7 April 1976.

'A pensioner who is entitled to draw pensions under the legislation of two or more Member States and who is entitled to benefits in kind under the

legislation of the Member State in whose territory he resides, taking account where appropriate of the provisions of Article 18 and Annex V, shall, with the members of his family, receive such benefits from the institution of the place of residence and at the expense of that institution as though he were a pensioner whose pension was payable solely under the legislation of the latter State.'

On the accession of the new Member States to the Communities, this passage was, under Article 1 (5) of Regulation No 2864/72 of the Council (JO L 306, p. 1) replaced by a new one, except in respect of the new Member States, in whose case the application of the regulation was postponed until 1 April 1973. In the case of the old Member States, Article 27 of Regulation No 1408/71 provided, with effect from 1 January 1973, that:

'A pensioner who is entitled to draw pensions under the legislation of two or more Member States, among which is the Member State in whose territory he resides, and who is entitled to benefits under the legislation of that Member State, taking account where appropriate of the provisions of Article 18 and Annex V, shall, with the members of his family, receive such benefits from

AULICH v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

the institution of the place of residence and at the expense of that institution as though he were a pensioner whose pension was payable solely under the legislation of the latter Member State.'

JUDGMENT OF 26. 5. 1976 – CASE 103/75

8 The answer which, in consequence, must be given to the national court is that Article 27 of Regulation No 1408/71 refers only to sickness or maternity benefit granted by the competent institution of the State in which the retired person is resident after those risks have materialized and cannot affect any right of the retired person to receive under the legislation of other Member States a benefit of the type of the allowance towards the contribution to a voluntary sickness insurance scheme.

Costs

9 The costs incurred by the Government of the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

Registrar President