C-1/78

pending before him between

Patrick Christopher Kenny

and

Insurance Officer

on the interpretation of Article 7 of the Treaty and of certain provisions of Regulation No 1408/71 of the Council of 14 June 1971 on the application

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

Facts and Issues

The order for reference and the written Mr Kenny appealed from that decision Article 20 to the National Insurance Com­ observations submitted under

of the Protocol on the Statute of the missioner, who, taking the view that the

Court EEC be dispute interpret­ of Justice of the may raised questions of the

summarized as follows: ation of Community law, requested the Court of Justice to give a preliminary ruling on the following questions: I — Facts and procedure 1. Whether within the scope of

application of Regulation (EEC) No Mr Kenny, the plaintiff in the main 1408/71 Article 7 of the Treaty of

suspended sentence. While serving this (1) to treat facts occurring in the term he became ill and received Member of another territory treatment in a hospital which did not State as equivalent to

belong to the prison. On his return to facts occurring in corresponding Great Britain he claimed cash sickness its own State being facts which benefits under the National Insurance had occurred in its own they Act 1965 for the period while he was in State would have disqualified the

hospital. The Insurance Officer, the worker concerned in part or in defendant in the main action, refused to whole for the benefits receiving grant that request, relying upon section and

49 (1) (b) of the National Insurance Act (2) to withhold benefit accordingly. 1965 which, in the version then in force, 3. Whether the answer to the preceding provided that: question would be different if the "Except where regulations otherwise worker concerned were a national of

provide, a person shall be disqualified the Member State of the competent

for receiving any benefit ... for any institution. period during which that person —

on the Statute of the Court of Justice of competent institution in accordance

the EEC. with the legislation which it admin­

isters"

Judge- should be construed to mean that After hearing the report of the the benefit is to be payable in Rapporteur and the views of the accordance with that legislation as if all Advocate General, the Court decided to the facts found in relation to the worker open the oral procedure without any had occurred territory in the of the preparatory inquiry. competent Member State.

In support of these arguments, the

II — Written observations sub­ defendant in the main action relies upon

leads defendant of a specific Member State must be being applied; this the

in the main action to examine whether treated, even in the absence of specific

Regulation No provisions to this effect, as equivalent to 1408/71 contains such a

prohibition. corresponding facts which the national

legislation considers as relevant only if The Insurance Officer maintains that in territory"

occur the national they where benefit is payable to a worker ([1975] ECR 902-3). residing in the territory of a Member State other than the competent State While the Court did not in the D'Amico Regu­ case follow the opinion of the Advocate only by virtue of the provisions of General, the Insurance Officer lation No 1408/71, that regulation

Article 7 of the Treaty of Rome nor any national territory in relation to

other provisions in the Treaty or in acquiring and retaining the right to and

Regulation No 1408/71 preclude the calculating the amount of benefit, the

application of rules for disqualifying a Treaty and, in particular, Article 51, person for the receipt of benefit during permits the Member States to take into periods of imprisonment. Moreover, the account extra-territorial events. The interpretation contended for by the Commission quotes as examples Article Insurance Officer would apply equally 86 of Regulation No 1408/71 and

to nationals or non-nationals of the Articles 36 (1) and 83 (1) of Regulation competent State. For those reasons the No 574/72 (OJ L 74 of 27 March 1972, Court should reply to the questions put p. 1). On the other hand, Community National Insurance Com­ legislation impose by the may also certain

missioner as follows: limitations on, or conditions governing, the enjoyment of the rights or workers, That the competent institution of a as for example in Article 69 of Regu­ Member State which is required by lation No 1408/71. According to the either Article 19 (1) (b) or Article 22 (1) Commission, the Court of Justice (a) (ii) of Regulation (EEC) No accepted in certain judgments this 1408/71 to pay cash benefits to a limitation on the enjoyment of social worker, whether or not he is a national

Accordingly the Commission treats the unemployment benefits, concrete ex­

other questions after the second pression has been given to this principle question. by Form E 303, with regard to Article 69 of Regulauon No 1408/71. At The second question paragraph 5 of that form there appears

According to the Commission, in a list of circumstances which entail

addition to Article 51 (a) of the Treaty suspension of benefit. Although which obliges the Member States to take imprisonment does not figure among account of periods spend outside the them, it would seem that, in view of the

JUDGMENT OF 28. 6. 1978 — CASE 1/78

expository nature of the list, such precedent. Under Article 67 (1) of Regu­ eventuality might well be covered by lation No 1408/71 where periods of

meaning of the competent State's The Commission concludes that the legislation. If the position were first reply to the part of the second otherwise Community law would lift, by question should be that for the purpose implication at least, the need to comply of determining, in accordance with the with any national conditions once the provisions of Regulation No 1408/71, worker had left the competent State's worker has whether a migrant satisfied frontiers. Thus the migrant worker in the national conditions of a competent the claimant's position would have an State for entitlement to cash sickness non- advantage not only over the State is only benefit, that able to take migrant but also over the migrant account of a period of imprisonment worker who, instead of returning, say, within another Member State occurring to Ireland, decided to stay in the United to the extent that had such Kingdom where imprisonment took imprisonment occurred within the place. competent State it would have entailed

However, the question then arises disqualification for the receipt of that

whether facts outside the benefit. The second part of the question occurring jurisdiction of the competent State but therefore calls for a reply in the affir­

within the Community are to have the mative.

same impact or effect with regard to the

benefit claimed in the competent State The first question

qualification rules of the Member State argue otherwise would be incompatible where the imprisonment took place with the usk given the Council by the were to constitute the determining second paragraph of Article 7 to adopt

factor this might well result in nine rules to prohibit discrimination. The variants for nine migrant workers reply to the first question must therefore

insured in, say, the United Kingdom. be that in the field of social security for The power to investigate the nature of migrant workers effect has been given

an extra-territorial event is not without to Article 7 of the Treaty by Article 3

KENNY v INSURANCE OFFICER

(1) of Regulation No 1408/71, the regu­ Communities, represented by its Agent, lation being directly applicable in all J. Form an, presented oral argument. Member States. The Commission provided information The third question on the system in the Member States In the light of Article 7 of the Treaty with regard to prisoners in so far as

of social security schemes to employed families moving persons and their

within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2 These questions have been referred to the Court within the context of a

dispute between the Insurance Officer and the plaintiff in the main action

over the right of the latter to receive the cash benefits for incapacity for work because of sickness, as provided for in the National Insurance Act 1965.

3 The plaintiff in the main action, a national of the Republic of Ireland who is however resident in Great Britain, is, as a worker, subject to the National Insurance Act and therefore entitled to receive the above-mentioned benefits if he fulfils the conditions for the acquisition of that right.

court may or must, Community law, treat, as a ground for the loss or under

suspension of the right to benefits laid down by the National Insurance Act,

imprisonment or detention in legal custody in another Member State as

equivalent to imprisonment or detention in legal custody in Great Britain.

The first question

7 The first question asks whether within the scope of application of Regu­

resident in the territory of one of the Member States and to whom the regu­

lation applies shall be subject to the same obligations and enjoy the same

benefits under the social security legislation of any Member State as the

nationals of that state.

11 This provision is designed to ensure for workers covered by the regulation, in accordance with Article 48 of the Treaty, equality in the area of social

distinction discrimi­ security without as to nationality, by prohibiting any nation in such matters arising from the national legislation of Member States.

another Member State in accordance with the legislation which it administers is entitled to treat facts occurring in the territory of another

Member State as equivalent to corresponding facts occurring in its own State being facts which, had they occurred in its own State, would have

disqualified the worker concerned in part or in whole from receiving the

benefits and whether it may withold benefit accordingly (the second

question) and, on the other, whether the answer to the preceding question

would be different if the worker concerned were a national of the Member State of the competent institution (the third question).

15 Similarly, Article 22 (1) (a) (ii), which covers cases in which a worker falls ill during a stay in a Member State other than the State of the competent institution, provides that, taking account where appropriate of the

provisions of Article 18, that worker is entitled "to cash benefits provided

by the competent institution in accordance with the legislation which it administers".

JUDGMENT OF 28. 6. 1978 — CASE 1/78

16 It follows clearly from these provisions that, subject to the application of Article 18 on the aggregation, for the purposes of the acquisition, retention or recovery of the right to benefits, of insurance periods completed under the legislation of other Member States, it is for the national legislation to lay down the conditions for the acquisition, retention, loss or suspension of the right to social security benefits so long as those conditions apply without

discrimination to the nationals of the Member State concerned and to those of other Member States.

nationality.

19 Therefore, by referring each institution to "the legislation which it Articles 19 (1) (b) 22 (1) (a) (ii) Regulation No administers"

and of

1408/71 comply with the principle of non-discrimination laid down in Articles 7 and 48 of the Treaty and in Article 3 (1) of that regulation.

2: It is therefore appropriate to reply that Articles 7 and 48 of the Treaty and Article 3 (1) of Regulation No 1408/71 do not prohibit — though they do not require — the treatment by the institutions of Member States of

corresponding facts occurring in another Member State as equivalent to facts which, if they occur on the national territory, constitute a ground for the loss or suspension of the right to cash benefits; the decision on this

23 As these proceedings are, in so far as the parties to the main anion are

concerned, a step in action the pending before the national court, the

decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the National Insurance Commissioner by decision of 29 December 1977 hereby rules:

3. The reply given to the second question applies also and to the same

extent to cases in which the worker concerned is a national of the

Member State to which the competent institution belongs.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 28 June 1978.

disputes. The Court will once more be The main action is between a national led to deal with the situation relating to of the Republic of Ireland, who is at cash sickness insurance benefits of Britain" present resident in England, and the workers "absent from Great Regulation No Insurance Officer who represents the within the meaning of

1408/71. British Minister of Health and Social Security. In contrast to the Brack case on which

this Court gave a decision bv judgment On 9 January 1973, the Central of 29 September 1976 ([1976] ECR Criminal Court in Dublin found Mr

1430), the present case concerns a stay Kenny guilty of assault on his wife and or residence of rather a special nature sentenced him on that account to 12 imprisonment months'

since the person concerned was with a suspended

imprisoned in another Member State. sentence on condition that he complied