C-109/76

JUDGMENT OF 9. 6. 1977 - CASE 109/76

In Case 109/76

Reference to the Court under Article 177 of the EEC Treaty by the Raad van Beroep, Amsterdam, for a preliminary ruling in the action pending before that court between

MRS M. BLOTTNER, Berlin

and

BESTUUR DER NIEUWE ALGEMENE BEDRIJFSVERENIGING, Amsterdam

Facts and issues

The facts of the case, the course of the Netherlands where she resided from procedure and the observations 1928 to 1940. She then returned to submitted pursuant to Article 20 of the Germany where she worked until 1946. Protocol on the Statute of the Court of Since that date she has had no gainful Justice of the EEC may be summarized occupation. as follows: On 3 August 1973 she suffered an accident which rendered her unfit for I — Facts and written procedure work. Since the competent social security institutions refused to grant her a Mrs Blottner, a German national resident disablement pension in respect of her in Berlin, was employed in the periods of employment in Germany and

BLOTTNER v NIEUWE ALGEMENE BEDRIJFSVERENIGING

pension. This new fact prompted the first-mentioned Member State which Netherlands institution, the respondent was not legislation within the in the main action, to recognize that Mrs meaning of the beginning of Article Blottner was in principle entitled to 45 (3) and which, on the date referred claim benefits under the Netherlands to in Article 94 (2), was no longer legislation, pursuant to Article 45 (3) of existing legislation within the Regulation No 1408/71. Nevertheless, meaning of Article 1 (j) of that the Netherlands institution refused to regulation, account being taken of the pay an invalidity pension on the grounds last sentence of Article 45 (3)? that, since the person concerned was not (Therefore although he was never in employment when the accident subject to the legislation of the occurred, she did not fulfil the material firstmentioned Member State within condition as to insurance prescribed by the meaning of the beginning of the Wet op de arbeidsongeschiktheids

questions: Netherlands institution may be 1. For the acquisition of a right to derived from Article 45 (3) on the benefits on the basis of Article 40 of basis of insurance periods Regulation (EEC) No 1408/71 payable (previously) completed under the by an institution of a Member State Netherlands legislation on referred to at the beginning of Article insurance against incapacity for 45 (3) of that regulation — having work, then, for the purposes of regard to the background to the Article 46 (2) of the regulation, not adoption of the latter provision — is only periods completed under that it sufficient that a worker who is legislation but also periods of paid subject to the legislation of another employment and periods treated Member State at the time when the as such completed under risk which was in principle insured Netherlands legislation before 1 against materializes or, if this is not July 1967 must be considered as

insurance periods completed ease this change-over it was decided that, under the said Netherlands with regard to the acquisition of the right legislation? to benefit under the WAO, insurance periods completed under the IW should Paragraph 4 of part H of Annex V to be treated as equivalent to periods Regulation No 1408/71, on the completed under the WAO. application of Netherlands legislation on insurance against incapacity for work, In order that, for the purpose of applying provides: Article 46 (2) of Regulation No 1408/71, (a) For the purposes of Article 46 (2) of that is to say of calculating the amount of the regulation, periods of paid the benefit, the words 'the legislation of a employment and periods treated as Member State' are not interpreted as both such completed under Netherlands 'the rules in force at that time' and 'the legislation before 1 July 1967 shall rules which were in fact applicable to the also be considered as insurance person concerned', paragraph 4 of part H periods completed under Netherlands of Annex V to that regulation provides legislation on insurance against that periods of paid employment incapacity for work. completed in the Netherlands before 1 (b) The periods to be taken into account July 1967 shall be considered as periods in pursuance of subparagraph (a) shall completed under the WAO.

1976. completed within the framework of the IW do not confer a right to benefits Having heard the report of the under the WAO. It is true that the Judge-Rapporteur and the views of the Advocate-General, the Court decided to practice derogating from that rule is followed by the respondent in the main open the oral procedure without any action when the person concerned has preparatory inquiry. not been insured against invalidity in another Member State before or after receiving benefits under the IW.

Is invalidity insurance the Netherlands the migrant worker protected as such and changed over as from 1 July 1967 from a not because he may not receive less system of aggregation based on the favourable treatment because he is a completion of insurance periods migrant? On this view the migrant (Invaliditeitswet, the Law on invalidity, worker could claim rights because he is a hereinafter referred to as 'the IW’) to a migrant and would thereby be placed in system of apportionment based on the a favourable position in relation to other principle of risk (the WAO). In order to workers.

The circumstance that migrant workers The reply to the second question must may receive less favourable treatment is a be that paragraph 4 (a) of part H of consequence not of their being migrants Annex V must be regarded as applicable but rather of the change of legislation. also to the acquisition of the right to benefits under Article 45 (3). If the Court were to reply to the question in the negative, on the basis of Article 51 The last question must consequently be of the Treaty alone, would it not have to answered in the negative. be inferred from the wording of Regulation No 1408/71 that the The Commission considers first of all the equivalence referred to in paragraph 4 of regularity of the reference. It is in fact part H of Annex V must also apply to clear from the wording of Article 177 of the acquisition of the right to benefits? the Treaty that questions submitted to In Case 4/66, Labots (née Hagenbeek) the Court under this provision must ([1966] ECR 425) the Court noted that come from a 'court'. In the context of the Regulation No 3 distinguishes much less main action the questions were clearly than the wording of the submitted by the president of a court in preliminary question gave reason to the form of a letter sent by him to the suppose between the recognition of the Court of Justice. Nevertheless a court right to benefit and the ascertainment of decision was indeed the means by which the amount of that benefit. Does this the Raad van Beroep authorized its perhaps apply also to Regulation No president to submit a question for a 1408/71? preliminary ruling to the Court of Justice; furthermore, as the Court has Furthermore, it may be assumed that many times had occasion to state, in the what applies to Article 45 (3) also applies procedure under Article 177 of the to Article 45 (1) and to the last sentence Treaty it is inappropriate to adopt a of Article 45 (2). formal approach incompatible with the very nature of that article. The If, pursuant to that provision, only Commission thus considers that the periods under the WAO might be taken reference may be regarded as admissible. into consideration for the acquisition of the right, whilst pursuant to Article 46 With regard to the substance of the case, periods of employment completed in the the Commission notes that the German Netherlands before 1 July 1967 should legislation which is applicable is of Type also be taken into account in B (that is to say, it makes the amount of determining the amount of the benefit, a the benefit dependent upon the duration special condition for entitlement to of the insurance), whilst the Netherlands Netherlands benefits would be created legislation is of Type A (that is to say, it for those having the status of persons is based upon the materialization of the

risk). Pursuant to Article 45 (3) of presently applicable it follows that the Regulation No 1408/71 any worker who system of aggregation of insurance is no longer subject to legislation of Type periods to be applied can only be that A is deemed still to be so subject at the which appears in Article 45 (3). With time when the risk materializes if he is regard to the condition contained in that subject to the legislation of another provision to the effect that the worker Member State or, failing that, can must have been previously subject to establish a claim to benefits under the 'that legislation', in the Commission's legislation of another Member State. view this expression must be interpreted as embracing the social security scheme The first question refers to Article 1 (j) of relating to a specific risk which may Regulation No 1408/71, which states that result from successive laws.

The terms 'present and future' appearing in Article 1 (j) of Regulation No 1408/71 The Court has stated that Regulation No seem to rule out the application of a 3 'must be interpreted in the light of previous law. This interpretation of Article 48 to 51 of the Treaty which principle must be adopted with regard to constitute the basis, the framework and the law to be applied, but only for that the bounds of the social security purpose; it must not be applied to regulations'.

The rules contained in Articles 38 and 45 of Head (a) of the second question appears Regulation No 1408/71 are in fact to have been submitted solely in case the different in order to take account of the Court were to consider that Article 45 (3), peculiarities of the various national interpreted in the light of Article 1 (j), legislations. Consequently, it is of little refers only to 'previous' insurance periods importance to know the type of completed under a law of Type A legislation in force when the insurance periods were completed in order to select Since the Commission considers that the rule of aggregation applicable when such an interpretation should be adopted the risk materializes. Since the WAO is the question is rendered irrelevant.

BLOTTNER v NIEUWE ALGEMENE BEDRIJFSVERENIGING

Decision

1 By letter of 19 November 1976 which arrived at the Court Registry on 22 November 1976 the Raad van Beroep, Amsterdam, submitted, pursuant to Article 177 of the EEC Treaty, a number of preliminary questions on the interpretation of Articles 40, 45 and 46 and of Annex V to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social

JUDGMENT OF 9. 6. 1977 - CASE 109/76

security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

2 Those questions have been submitted within the framework of a dispute relating to the refusal by the competent Netherlands institution to pay an invalidity pension to a German national who pursued activities as an employed person in the Netherlands from 1928 to 1940.

3 The person concerned returned to Germany in 1940 where she worked until 1946 and thereafter had no further gainful occupation.

BLOTTNER v NIEUWE ALGEMENE BEDRIJFSVERENIGING

referred to in Article 94 (2), was no longer existing legislation within the meaning of Article 1 (j) of that regulation, account being taken of the last sentence of Article 45 (3) (therefore although he was never subject to the legislation of the firstmentioned Member State within the meaning of the beginning of Article 45 (3))'.

7 At the time when the appellant in the main action became an invalid the Netherlands legislation was of Type A, that is to say legislation according to which the amount of invalidity benefits is independent of the duration of insurance periods, whilst at the time when she worked in the Netherlands the legislation had been of Type B, that is to say legislation according to which the amount of benefits depends on the duration of insurance periods.

8 Article 40 (1) of Regulation No 1408/71 provides that 'A worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 37 (1), shall receive benefits under the provisions of Chapter 3, which shall apply by analogy ...'

9 According to the provisions of Article 1 (j) of that regulation, ' "legislation" means all the laws, regulations, and other provisions and all other present or future implementing measures of each Member State relating to the branches and schemes of social security covered by Article 4 (1) and (2)'.

10 The question arises whether the words 'present or future' exclude from the scope of that definition measures which were no longer in force at the time of the adoption of the regulation in question and of the regulation taken in implementation thereof, Regulation No 574/72 of the Council of 29 March 1972 (OJ, English Special Edition 1972 (I), p. 159), so that the provisions of Article 40 (1) are not applicable to a worker who was subject in a Member State to measures which ceased to be in force before the adoption of Regulation No 1408/71, although he is subject in another Member State to measures which are still in force.

16 The structure of the system of harmonization of national legislation established by the regulation is based upon the principle that a worker must not be deprived of the right to benefits merely because of an alteration in the type of legislation in force in a Member State.

17 This consideration infers that the concept of 'legislation' contained in Article 45 (3) must be widely interpreted so as to refer both to measures in force at the time when the risk materializes and to measures in force at the time when

the worker was subject to the legislation.

18 The reply to the first question must therefore be that for the acquisition of a right to benefits on the basis of Article 40 of Regulation (EEC) No 1408/.1 payable by an institution of a Member State referred to at the beginning of Article 45 (3) it is in principle sufficient that a worker who is subject to the

BLOTTNER v NIEUWE ALGEMENE BEDRIJFSVERENIGING

legislation of another Member State at the time when the risk insured against materializes or, if this is not the case, who has a right to benefits under the legislation of another Member State, can establish insurance periods or, at least, periods of employment and/or periods treated as such completed under a legislation which, although in force at the time when the worker was employed, had ceased to be in force before the adoption of Regulation No 1408/71, even if that legislation was of a different type from that which is in force at the time when the risk materializes.

In answer to the questions submitted to it by the Raad van Beroep, Amsterdam, by letter of 19 November 1976, hereby rules:

For the acquisition of a right to benefits on the basis of Article 40 of Regulation (EEC) No 1408/71 payable by an institution of a Member State referred to at the beginning of Article 45 (3) it is in principle sufficient that a worker who is subject to the legislation of another Member State at the time when the risk insured

against materializes or, if this is not the case, who has a right to benefits under the legislation of another Member State, can establish insurance periods or, at least, periods of employment and/or periods treated as such completed under a legislation which, although in force at the time when the worker was

OPINION OF MR WARNER — CASE 109/76

employed, had ceased to be in force before the adoption of Regulation No 1408/71, even if that legislation was of a different type from that which is in force at the time when the risk materializes.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen