C-17/76

JUDGEMENT OF THE COURT 29 SEPTEMBER 1976 1

M. L. E. Brack, widow of R. J. Brack v Insurance Officer

(preliminary ruling requested by the National Insurance Commissioner)

Case 17/76

Summary

1. Social security for migrant workers — Worker — Concept — Definition vis-à-vis British legislation — Effect — Object (Regulation No 1408/71 of the Council, Annex V, Point I, paragraph 1)

JUDGMENT OF 29. 9. 1976 — CASE 17/76

M. L. E. Brack, widow of R. J. Brack and

Insurance Officer

on the interpretation of Article 1 (a) (i), (ii) and (iii) and Point I (i) of Annex V to Regulation No 1408/71 of the Counicl of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ L 149, English Special Edition 1971 (II), p. 416),

THE COURT

composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and M. Sørensen, Judges,

receive immediate medical attention. On contingencies covered by the 25 October 1974 he returned home to branches of social security dealt England. The defendant in the main with in this regulation, under a action rejected his claim for cash social security scheme for all sickness benefit for the period from 30 residents or for the whole September to 24 October under Section working population if such 49 (1) of the National Insurance Act person: 1965 — a British Act of Parliament — can be identified as an hereinafter referred to as 'the 1965 Act' employed person by virtue of — according to which 'a person shall be the manner in which such disqualified for receiving any benefit ... scheme is administered or for any period during which that person financed, or ... is absent from Great Britain ...'. The — failing such creiteria, is defendant in the main action considered insured for some other that, during the abovementioned period, contingency specified in Mr Brack was not a 'worker' within the Annex V under a scheme for meaning of Regulation No 1408/71 and, employed persons, either therefore, could not benefit under the compulsorily or on an provisions of Article 22 (1) of that optional continued basis; regulation which provide that: 'A worker (iii) Any person who is voluntarily who satisfies the conditions of the insured for one or more of the legislation of the competent State for contingencies covered by the entitlement to [sickness] benefits ... and: branches dealt with in this (a) whose condition necessitates regulation, under a social security immediate benefits during a stay in the scheme of a Member State for territory of another Member State ... employed persons or for all shall be entitled: ... (ii) to cash benefits residents or for certain categories provided by the competent institution in of residents if such person has accordance with the legislation which it previously been compulsorily administers ..'. insured for the same contingency under a scheme for employed 2. A — Having failed in his appeal persons of the same Member from this decision to a local tribunal, Mr State.' Brack appealed further to the National Insurance Commissioner. The latter took Article 4 into consideration in particular the 1. This regulation shall apply to all following provisions of Regulation No legislation concerning the following 1408/71: branches of social security: (a) sickness ... benefits ...'

(c) ... shall be entitled: ... the contingencies so insured against, (ii) to cash benefits provided by a "worker" in terms of that the competent institution in subparagraph? accordance with the legislation 3. Whether for the purposes of which it administers ...' subparagraph (ii) of the above definition of "worker", a person 'Article 89 notwithstanding that he is self- employed at the relevant time can be Special precedures for implementing the identified as an employed person by legislations of certain Member States are virtue of the manner in which a set out in Annex V.' social security scheme is administered or financed, either Annex V, point I (headed "United generally or in relation to any Kingdom"), paragraph 1 contingency for which he is insured under this scheme, by reason of the 1. All persons required to pay fact that his title to benefit on the contributions as employed workers happening of such a contingency is shall be regarded as workers for the constituted to a material extent by his purposes of Article 1 (a) (ii) of the having paid, or been credited with, regulation.' contributions as an employed person? (Point I was inserted into Annex V by 4. Whether, for the purposes of virtue of the combined provisions of subparagraph (iii) of the above Article 29 of the Act concerning the definition of "worker" a person is to Conditions of Accession and the be regarded as voluntarily insured for Adjustments to the Treaties and of any contingency under a scheme, so paragraph 1 Chapter IX of Annex I to as to be a worker for the purpose of that Act.) that subparagraph either generally or in relation to such contingency, By an interim decision adopted on 12 either (i) because that person though February 1976 the National Insurance ordinarily compulsorily insured has at Commissioner decided to submit the the material time temporarily an following questions to the Court: option whether to pay contributions '1. Whether the provisions of paragraph or not, or (ii) because that person is at 1 of Point I of Annex V to the material time required to pay Regulation (EEC) No 1408/71 in any contributions only because he has way limit or restrict or merely exercised an election not to retire; supplement the definition of the and in either case notwithstanding term "worker" in Article 1 (a) of the that the scheme under which he was regulation or any branch of that previously compulsorily insured as an definition? employed person was a scheme for 2. Whether a social security scheme for employed persons and others?' employed persons and others is for the purposes of subparagraph (i) of B — The National Insurance the above definition of "worker" a Commissioner's reference contains the social security scheme for employed following explanations: persons, so that, consistently with Articles 48 to 51 of the EEC Treaty, (a) As regards British legislation on any person or any self-employed social security person (not being an employed person) insured under such scheme This legislation provides for a single against one or more of the system of national insurance, first contingencies covered by the scheme governed by the National Insurance Act is, either generally or in relation to 1946 and subsequently by the 1965 Act,

including in each case various regulations sickness. Section 18 of the 1965 Act having effect thereunder. After the events defined the term 'contributions of the giving rise to the claim occurred, the appropriate class' by providing that, as 1975 Act was replaced by the Social regards unemployment benefit, only Security Act 1975. employed persons' contributions were 'contributions of the appropriate class' The 1965 Act and its implementing (and gave rise to a right to regulations included the following unemployment benefit) whilst in provisions and brought about the relation to all other contributory following principal results: benefits either employed persons' con

the class in question. Conversely, a make a claim but was entitled to person who was under no obligation unemployment benefit or sickness to pay contributions was in general benefit at the weekly rate at which a not permitted to do so, subject to retirement pension would have been certain exceptions. payable if he had retired (section 19 By exercising a power conferred on (3)). Accordingly, in effect, the him by the 1965 Act, the Minister contribution conditions applicable to responsible modified the classification these benefits were, in the case of resulting from the sub-division such a person, those applicable to referred to above, with the result that retirement pensions. certain categories of persons were 4.

contribution qualified them. Referring insurance and the date of attaining each time to 'contributions of the normal pensionable age; and appropriate class', Schedule 2 to the — that the yearly average of 1965 Act established the minimum contributions (paid or credited) as amount of the contributions which at the date of attaining normal the person concerned had to pay or pensionable age was not less than had to have credited to him for 50.

who exercised his right not to retire at (c) Matters raised in argument that date could not claim a pension but continued to be liable to pay 1. The first question asks whether the contributions until he actually retired relevant provision of Annex V to or until the expiration of five years Regulation No 1408/71 — which had from pensionable age, when he was the effect of including in the term deemed in any case to have retired 'worker' any person classified by the (cf., section 30 (4)). Secretary of State as an employed person, even if not in fact an (b) The position of Mr Brack with employed person — restricts or limits regard to this legislation the scope of the term as defined in 1. At the material time Mr Brack was Article 1 of the regulation. between the ages of 65 and 70 and 2. The second question concerns the fact had not retired. Therefore, the rate at that the 1965 Act sets up a single which sickness benefit was payable social security scheme for employed, depended on the rate at which the self-employed and non-employed retirement pension would have been persons. It is thereforce necessary to payable if he had retired (cf., Point 3 decide whether, as a self-employed above). person at the material time, Mr Brack 2. This latter rate in turn depended on falls within the definition set out in his having satisfied to the extent Article 1 (a) (i) of Regulation No necessary the contribution conditions 1408/71, either for all purposes of the referred to under Point 4. In this regulation or in relation to the respect the following factors must be contingencies for which he was taken into account: insured.

3. As regards the third question it must — Subparagraph (i) alone uses the be remembered that the National phrase 'subject to the restrictions set Insurance Commissioner has already out in Annex V'. This Annex must held that a claimant in another case therefore be understood — subject to was a worker for the purposes of certain exceptions which are not Article 1 (a) (ii) of Regulation No relevant in this case — as only 1408/71. In that case, however, the placing restrictions on the definition facts were stronger in favour of the appearing in the said subparagraph claimant in that at the material time (i), to the exclusion of the definitions he had so recently been an employed given in subparagraphs (ii) and (iii). person that according to British — Subparagraph (ii), second indent, legislation and although he was refers to 'some other contingency currently paying the contributions of specified in Annex V'. This phrase a self-employed person, he was still, completes the expression 'contin when entitled to be credited with gencies covered by the branches of contributions, entitled to those of an social security dealt with in this employed person. regulation', employed at the

have ended. Article 1 (a) of the regulation. Its intention is to clarify and confirm that 3. The decision referring the case to the the persons to which it refers 'can be Court was received at the Registry on 16 identified as an employed person', by February 1976. virtue of the 'manner in which' the British scheme 'is administered or In accordance with Article 20 of the financed' in accordance with the first Protocol on the Statute of the Court of Justice of the EEC, written observations indent to subparagraph (ii). were submitted by the parties to the main action, the British and Danish A negative reply must therefore be given Governments and the Commission. to the first and an affirmative reply to the second alternative in this question. Upon hearing the report of the Judge-Rapporteur and the views of the B — General submissions on the Advocate-General, the Court decided to second, third and fourth questions open the oral precedure without holding any preliminary inquiry. As is shown by Article 48 (3) (b) of the Treaty, the term 'worker' also includes persons who are not at the material time II — Written observations sub

JUDGMENT OF 29. 9. 1976 — CASE 17/76

(d) enjoins the Community to ensure that that subparagraph (i) shall not apply to 'workers of one Member State employed certain self-employed workers, shows, as in the territory of another Member State . result of the very restriction which it may remain in that territory for the contains, that this category of workers is purpose of taking up activities therein as in principle covered by the said self-employed persons'. subparagraph. No such restriction appears in Point I of the Annex Numerous judgments of the Court which concerning the United Kingdom. have interpreted the phrase 'travailleurs salaries ou assimilés' — appearing in If it were necessary to accept that Article 4 of Regulation No 3 of the subparagraph (i) includes neither Council concerning social security for unemployed nor self-employed persons, migrant workers (JO No 30 of 16. 12. it would follow that no provision 1958, p. 561), which preceded Regulation contained in Article I (a) of the No 1408/71 — have defined it as regulation would cover the position of a including any person who is treated by national of the United Kingdom (or of the social security legislation of the any other Member State which had only relevant Member State as if he were an ever operated a single social security employee. scheme for employed persons and others) who was an employed person insured These factors, as well as the preamble to only on an optional continued basis or Regulation No 1408/71, lead to the voluntarily. Such a situation may arise conclusion that the principle of freedom under British legislation in respect of of movement for workers is not confined certain groups of persons. The result indicated would constitute a formidable to those who are or were employed, with the result that the term 'worker, as used obstacle to the free movement of

BRACK v INSURANCE OFFICER

could not be identified as an employed assist the tribunal or the commissioner to person by virtue of the contributions he whom appeal is made to arrive at a had made as such in the past. correct determination, without necessarily seeking to uphold the The definitions in Article 1 (r) and (s) of decision appealed against The Insurance Regulation No 1408/71 recognize that Officer deals with certain aspects only of periods of employment may include the questions referred to the Court, periods of non-employment and which he regards as of general interest self-employment if the national for the solution of disputes which he legislation so regards them. As the might be called upon to settle in the regulations adopted under the 1965 Act light of Community law. are intended to preserve accrued benefits, a period of self-employment which In any event any answers which the constitutes part of a person's entitlement Court may give to the questions referred to it should confirm: to benefit cannot prevent identification as an employed person. (a) that if a person is a worker within the definition in Article 1 (a) of E — The fourth question Regulation No 1408/71, he is such a worker for the purposes of the An affirmative answer must be given to regulation generally; this question, since a person must be (b) that, in determining, on the regarded as voluntarily insured where, happening of a contingency as a result of which benefit is claimed, although ordinarily compulsorily insured, he has at the material time temporarily whether a person is a worker within the definition in Article 1, it is not an option whether to pay contributions or not, notwithstanding that he was necessary to consider the nature or previously insured under a scheme for extent of the contributions by virtue of which entitlement to the benefit employed persons and others. claimed, or to some other benefit, has

points out, in particular, that, according frame its answers in such a way as to to this legislation, a person who is enable the United Kingdom tribunals to classified successively as an employed see more clearly how the Community person and a self-employed person or law is to be applied having regard to vice versa, would, if certain contingencies legislation of this type. With this in happened within a specified period, be mind the British Government states entitled to benefit by virtue of essentially as follows: contributions paid at a time when his — The British system, which began by status was different from that at the time covering only narrowly defined when the relevant contingency classes of workers, was later extended happened. to other classes who were considered by the legislature to have the same Where a person has acquired a right to needs and be subject to the same benefit by virtue of a contribution record risks. The exact composition of the constituted in part by contributions as an classes of person covered has varied at employed person and in part by other different times and has never been contributions, to have regard to the such as to permit the drawing of a contribution record in the manner clear distinction between those who envisaged in the third question, for the may be regarded as wage or purposes of determining whether such salary-earning workers and those of person is to be 'identified as a worker', other classes. necessitates determining what proportion — The contribution system in force at of the contributions constitutes 'a the time relevant to this case did not material extent' (cf. the wording of the (except as to the rate of contribution question). It may be said to be such if the payable and the liability of contribution record includes sufficient employers) distinguish between contributions as an employed person to contributors according to class; at establish title to some benefit. However, present, an attempt is being made to if title to some benefit is also established eleminate all differences of treatment by virtue of the other contributions between employed and self-employed alone, it is arguable that the persons. contributions as an employed person — In principle, contributors of all were not material, or only material as to classes are eligible for the same the rate of benefit payable. Finally, there benefits. are no firm principles by which to — No distinction is made between establish, in each particular case, whether different classes of contributors in the or not the number of contributions paid organization and administration of is 'material'. the scheme.

States (cf, in this respect, in particular, 1408/71. The fact that the Court adopted the Hoekstra née Unger judgment, the same basic concept is shown by its according to which the regulation judgment of 21 October 1975 (Case applied to all who, under whatever 24/75, Petroni v ONPTS [1975] ECR description, are covered by the different 1149) according to which a provision in a national systems of social security: in regulation which might cause workers to that instance, the person concerned lose advantages in the field of social previously possessed the status of 'worker' security guaranteed to them by the laws and was capable of re-acquiring it. of a single Member State was invalid.

. . on cases brought under Regulation persons other than the wage-earners No 3'. referred to by Regulation No 3, whatever may be the forms or methods of Article 2 of the regulation, which defines application employed by the national the persons whom the regulation covers, legislature' (Judgment of 19 December is in no way more restricted than the 1968 in Case 19/68, De Cicco v meaning which the Court has attributed Landesversicherungsanstalt Schwaben to the concept 'travailleurs salaries ou [1968] ECR 480 and the Judgment of 27 assimilés', within the meaning of October 1971, Janssen v Mutualités Regulation No 3.

JUDGMENT OF 29. 9. 1976 — CASE 17/76

2. The definition contained in the possibility must of necessity be adopted. provision is not exclusive, but merely It applies, however, even if that sets out three particularly important interpretation is adopted. In all the examples. Member States social security schemes 3. This definition excludes certain are tending to include new categories of groups of persons who had, on the persons, which, so far as they may fall basis of Regulation No 3, been within the principles deduced from accepted by the Court as being Articles 48 to 51 of the Treaty, must be covered by the regulation. covered by the regulation.

Annex V, Point A (1) However, the second possibility — that the definition in Article 1 (a) is not This provision provides that Article 1 (a) exclusive — is also correct. Moreover, if (i) shall not apply, inter alia, to the interpretation suggested above for the 'self-employed persons ... receiving expressions 'scheme for employed' medical treatment under the [Belgian] persons' etc. is not accepted, that Law of 9 August 1963 on the

BRACK v INSURANCE OFFICER

of Article 1 (a) (ii). Moreover, to accept the contrary On the other hand, it does not mean that argument would result in certain only the persons mentioned fall within unacceptable consequences: the said subparagraph. If the contrary (i) A person who went from one interpretation were adopted, without its Member State to another for two being accepted at the same time that the weeks might be a worker in one week persons who are thereby excluded from but not in the other if the the application of subparagraph (ii) and contribution period relevant to his not falling within subparagraph (i) are title to benefit in the second week

JUDGMENT OF 29. 9. 1976 — CASE 17/76

were a later period than the one 1408/71 — also refers to workers who relevant to his title in the first week, 'have been' subject to the legislation of (ii) A person might be a worker for the one or more Member States.

purpose of only certain benefits. Moreover, in such a case one would E — The fourth question not know whether or not he should be treated as a worker for the purpose A person who has been compulsorily of the non-contributory benefits insured as a worker under a scheme

previously completed may be material for another reason than that envisaged in the 4. Observations submitted by the Danish third question. A person is 'insured' for Government the purposes of the regulation so long as his insurance against a risk continues. It The Danish Government restricts itself follows that if, by virtue of periods to making general observations and to completed as a 'worker' a person is still giving its opinion on the first question. protected by a social security scheme against certain risks which have It is clear from the title of Regulation No materialized or which may materialize, 1408/71 and from Articles 1 (a) 2 (1) that such person must be considered as being the regulation applies to employed still a worker. The question is simply persons. whether those periods are taken into account for the purpose of the Regulation No 3 contained no definition acquisition or retention of the right to, or of the concept 'worker' corresponding to the calculation of the amount of, the that in Article 1 of Regulation No benefit in question. 1408/71. This is explained by the fact that the six original Member States had This question therefore concerns the special social security schemes for protection of acquired rights or rights in employed workers, so that the definition formation, which is the object of Article of this concept gave rise to no difficulty. 51 of the Treaty and has been affirmed However, since the adoption of by the Court, for example, in the Regulation No 3 the national legislation judgments in Hoekstra (née Unger) and of the Member States has undergone Janssen. As these judgments have considerable development, characterized emphasized, Article 4 of Regulation No by ever-increasing endeavours to expand 3 — like Article 2 of Regulation No social security systems to embrace an

increasingly large portion of the workers who temporarily reside in population. As regards the legislation of another Member State, depending on the new Member States in particular, it whether they come from a Member State differs in important branches from that with general social security schemes or a of the original Member States, in that it Member State which draws a distinction covers either all persons resident in the in its social security schemes between territory of the State concerned, or the employed and self-employed persons. entire national population irrespective of whether the indiviudals concerned are in Point I (1) of Annex V to Regulation No 1408/71 clarifies the definition of the

for interpretation The regulation also applies to schemes of this nature but restricts its area of The National Insurance Commissioner application to workers, members of their constitutes a court or tribunal within the families and persons who have been meaning of Article 177 of the Treaty, workers. This restriction follows from that is, it is the final tribunal of appeal Article 2 but also appears in the called upon to deal with social security provisions of Article 1 (a) (ii). It is the matters, subject to a certain supervisory inevitable consequence of the fact that jurisdiction exercised by the High Court. the regulation was adopted in pursuance This request is therefore admissible. of Article 51 of the EEC Treaty.

as workers. This applies in particular to questions concerning the interpretation old-age benefits. of Regulation No 1408/71 which are involved in this instance. However, Moreover, the contrary argument would certain elements in its case-law bring about an unreasonable extension of the area of application of the regulation concerning the interpretation of the in that most nationals of the Member phrase 'wage-earners or assimilated States have been workers at one time or workers' (Article 4 of Regulation No 3) another. are, or may be, of interest for the solution of the problem:

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Article 22 of the Regulation. — As regards subparagraph (ii) it must be remembered that this subparagraph While the authors of Regulation No 3 only refers to those persons who are were content to limit the persons to insured for the contingencies 'covered by whom the regulation applied by using, the branches of social security dealt with without defining it, the term in this regulation', a condition which 'wage-earners or assimilated workers', the does not appear in subparagraph (i). authors of Regulation No 1408/71 used the term 'worker' for this purpose and Although subparagraph (ii) refers to took care to define it in detail (Article 1 schemes which also cover persons other (a)). In doing so they took into account than 'employed persons', it is limited to the case-law of the Court, as is shown by insured persons who may be regarded as

BRACK v INSURANCE OFFICER

Under the British scheme a person could E — The fourth question be identified as an employed person by having regard, in particular, to the type It seems desirable to deal with this of contribution and the rate at which it question before the third question. was paid. The reply to the fourth question must C — The first question also be in the negative for the following reasons:

No provision expressly explains the legal relationship between Regulation No In cases such as the present, there is no 1408/71 and its annexes. In this respect, immediate relationship between, on the a distinction must be made: one hand, the claimant's previous compulsory insurance as an employed Article 1 (a) (i) refers to Annex V by person and, on the other hand, either of using the words 'subject to the the factors which might serve to classify

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contributions. It is not known whether population; at least these laws are Mr Brack availed himself of this option. excluded in so far as they auto At all events, he would have been matically concern the self- compulsorily insured before and after his employed sectors of the population'. brief stay in France. — Subparagraph (ii) attempts to pick out those persons who are 'workers' from In addition, the fact that he decided to among the persons subject to a continue working after reaching the age general social insurance scheme. of retirement cannot confer on him the On the other hand, one of the principal status of a 'person who is voluntarily insured'. aims in the field of social security is to secure equality of treatment for all those covered by Community legislation.

Regulation No 3. The question thus The Commission considers that it is only arises whether a person who is at present in the context of the third question that insured under a general scheme an affirmative reply is arguable. However, otherwise than as an employed worker, taking the question as a whole, the but who has previously been so classified, Commission considers that such a reply may be considered, if certain conditions would conflict with persuasive arguments are fulfilled, as falling within the scope of to the contrary. It wonders, however,

BRACK v INSURANCE OFFICER

'is constituted to a material extent by his persons who have formerly been having paid, or been credited with, classified as employed persons. A contributions as an employed person' formula enabling this extension to be (see the wording of this question). Such made would have to be found. The an argument would lead to arbitrary particular branch or branches of social results, since: security covered would then have to be — If Mr Brack had been under 65 at the decided on a case by case basis. Such a material time, the periods completed formula may appear to be justified on the by him as an employed person would ground that, for its part, subparagraph not have been taken into account (iii) is concerned with a situation where under British legislation for the the persons in question are not, strictly purpose of the benefit in question; speaking, presently employed, that — The argument which has just been Article 2 of Regulation No 1408/71 also dismissed thus amounts to stating refers to persons who 'have been subject' that the mere fact that the claimant to the legislation of one or more Member has not retired at the age of 65 gives States and, finally, that it would be him the status of an employed unfortunate that a person who has been person. classified as an 'employed worker' for 25 years, for example, should immediately Another reason which suggests a negative be excluded from the benefit of the

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2 Those questions were raised within the framework of a dispute between a British national born in 1906 — the claimant in the main proceedings — who had always resided in Great Britain and who had paid contributions under the British national insurance scheme since 1948, initially as an employed person and subsequently as a self-employed person, and the competent British social security institution. The dispute arose because the claimant fell ill during a stay in France, where he had gone for reasons of health, and he had therefore to receive immediate medical treatment.

3 By virtue of a provision of national law which lays down the principle that 'a person shall be disqualified for receiving any benefit ... for any period during which that person ... is absent from Great Britain ...' the said institution refused him — and now refuses his widow who is continuing with the proceedings — sickness benefits in cash for the period during which he stayed in France.

4 Under Article 22 (1) of Regulation No 1408/71 relating inter alia to sickness benefits, 'a worker' — a word defined in Article 1 (a) of the regulation — 'who satisfies the conditions of the legislation of the competent State for entitlement to benefits ... and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State ... shall be entitled: ... (ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers'.

5 Since that provision precludes the application to a worker of such a provision of national law the essential purpose of the questions of the National Insurance Commissioner is to ascertain whether persons in the position of the claimant in the main proceedings have the status of a 'worker' within the meaning of Article 1 (a) of Regulation No 1408/71.

10 The explanation for the provision in question in Annex V is that the British system, which distinguishes between contributions from employed persons, self-employed persons and non-employed persons, also requires certain categories of persons who do not have this status under the law of employment to 'pay contributions as employed persons'.

11 The said provision is thus intended to ensure that Article 1 (a) (ii) is applied broadly in that it makes it clear that any person who is required to pay contributions as an employed person can be identified as such by virtue of the manner in which the British system is administered or financed in the sense of the first indent of this subparagraph.

12 Accordingly the answer to the national tribunal must be that, far from restricting the definition of 'worker' as it emerges from Article 1 (a), the provision in paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71 is solely concerned to clarify the scope of subparagraph (ii) of this paragraph vis-à-vis British legislation.

The third question

13 In the third question the Court is asked whether a person in the situation of the claimant in the main proceedings is a 'worker' within the meaning of Article 1 (a) of Regulation No 1408/71 because he comes within the scope of subparagraph (ii) of that paragraph.

14 For the purposes of the reply to this question it is necessary to set out, in addition to the circumstances previously mentioned, the following facts and

reaching the age of sixty-five years;

— the claimant under those provisions could only have claimed the full rate of sickness benefits in cash by aggregating the contributions paid by him or on his behalf when he had the status of an employed person with his contributions as a self-employed person.

15 A person in such a situation fulfils the first two conditions set out in subparagraph (ii) in that he is 'compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this regulation' ... 'under a social security scheme ... for the whole working population'.

16 More particularly, with regard to the first condition, the insurance is 'compulsory', since the person concerned is insured under the relevant scheme irrespective of his wishes and the insurance does not cease to be compulsory because of the fact that during certain limited periods, such as a stay abroad, payment of contributions is optional for him.

17 Consequently the point to be settled amounts to whether the persons concerned also fulfil the conditions set out in the first indent of subparagraph

BRACK v INSURANCE OFFICER

22 First, according to Article 2 (1) which determines the persons covered by the regulation, the regulation shall apply to workers who are 'or have been' subject to the social security legislation of one or more Member States.

23 Secondly, under Article 34 of the regulation, for the purposes of Chapter 1 of Title III (the chapter devoted inter alia to the contingency of sickness) a pensioner who is entitled to benefits in kind under the legislation of a Member State as the result of pursuing a professional or trade activity 'shall ... be considered as a worker'.

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24 Whilst the regulation thus covers certain persons who have lost the status of worker and who are indeed no longer insured under a social security scheme in one of the Member States it cannot be excluded that the regulation may be applicable, where appropriate, to persons who, although they have lost the status as employed persons, remain compulsorily insured under the same scheme which covered them previously when they had that status.

25 Finally, as paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71 states clearly, the regulation also applies to persons who, in accordance with the relevant national legislation, that is British legislation, are obliged to pay contributions as 'employed persons' although in fact they do not have this status.

26 Article 1 (a) (ii) of the regulation must be interpreted in the light of these considerations.

The second and fourth questions

31 In the second and fourth questions the Court is asked whether the persons in the abovementioned situation constitute 'workers' within the meaning of paragraph (a) of Article 1 in that they come within the scope either of subparagraph (i) or of subparagraph (iii) of that paragraph.

32 In view of the reply to be given to the third question it is unnecessary to consider these questions.

Costs

33 The costs incurred by the British Government, the Danish Government and the Commission of the European Communities which submitted observations to the Court are not recoverable.

34 As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the case pending before the National Insurance Commissioner costs are a matter for him to decide.

— was compulsorily insured against the contingency of 'sickness' successively as an employed person and as a self-employed person under a social security scheme for the whole working population;

— was a self-employed person when this contingency occurred;

— at the said time and under the provisions of the said scheme, nevertheless could have claimed sickness benefits in cash at the full rate only if there were taken into account both the contributions paid by him or on his behalf when he was an employed person and those which he made as a self-employed person;

constitutes, as regards British legislation, a 'worker' within the meaning of Article 1 (a) (ii) of Regulation No 1408/71 for the purposes of the application of the first sentence of Article 22 (1) (ii) of this regulation.

Lecourt Kutscher O'Keeffe

Donner Mertens de Wilmars Pescatore Sørensen

1 — Translated from the French.