C-69/79

JUDGMENT OF 10. I. 1980 — CASE 69/79

accordance with Community rules of one or more social security which define what those benefits shall schemes which are or have been consist of. applicable to him. To interpret Regu- It follows that the words "sickness lation No 1408/71 as prohibiting and maternity benefits" within the national legislation to grant a worker meaning of Article 4 (1) (a) and social security broader than that Chapter 1 of Title III of Regulation provided by the application of the No 1408/71 must be interpreted as said regulation would therefore be including benefits under legislation going beyond that objective, and also concerning invalidity which are in the outside the purpose and scope of nature of medical or surgical benefits. Article 51. 3. The essential object of Regulation N o 4. Regulation No 1408/71, having 1408/71 adopted under Article 51 of regard also to Anieles 19 and 28 (1) the Treaty is to ensure that social thereof, does not fetter the power of security schemes governing workers in the competent institution of a each Member State moving within the Member State to grant sickness or Community are applied in accordance maternity benefits, within the meaning with uniform Community criteria. T o of Article 4 (1) (a) of the said regu- this end it lays down a whole set of lation, including benefits of a medical rules founded in particular upon the or surgical nature, to a person who is prohibition of discrimination on in receipt of an invalidity pension grounds of nationality or residence under the legislation of that Member and upon the maintenance by a State and who resides in the territory worker of his rights acquired by virtue of another Member State.

on the interpretation of Article 4 (1) (a) and Articles 19 (1) and (2) and 28 (1) of Regulation (EEC) 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),

T H E C O U R T (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

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

gives the following

JUDGMENT

institution. In addition, the applicant's the provisions of the following husband, also resident in Belgium, was paragraph and of Article 61, be employed as a wage-earner in the considered for the benefits referred Netherlands in 1973/1974 and by virtue to in the previous paragraph only if of that employment was insured under those benefits do not 'form part of the Ziekenfondswet [Netherlands Law , the benefits in kind governed by on sickness insurance]. Article 8 (2) of the Ziekenfondswet [Law on sickness insurance] and by Article 6 (2) of the Algemene Wet 2. On the basis of Article 60 of the Bijzondere Ziektekosten [General WAO, repealed as from 1 October 1976, Law on insurance against special Mrs Jordens applied to the competent sickness costs]. social security institution, the Bestuur van de Bedrijfsvereniging voor de Leder- en Lederverwerkende Industrie, Tilburg 4. In special cases and with the consent hereinafter referred to as "the Be- of the Arbeidsongeschiktheidsfonds drijfsvereniging", for reimbursement of [Insurance fund for incapacity for the aforesaid expenses incurred in work], the Bedrijfsvereniging is respect of her stay in hospital and empowered to consider the persons medicines and borne by her. referred to in the previous paragraphs, who are not insured under the Ziekenfondswet and the That article provided as follows : Algemene Wet Bijzondere Ziekte- kosten, for the benefits referred to in " 1 . The Bedrijfsvereniging is empowered paragraphs 1 and 2 if those benefits to consider insured persons, persons form part of the benefits in kind who have been insured, persons who governed by Article 8 (2) of the have completed the waiting period of Ziekenfondswet and by Article 6 (2) 52 weeks referred to in Article 19 of the Algemene Wet Bijzondere and persons who are or have been in Ziektekosten. receipt of a pension for incapacity for work, at the request of the 5. -The court may review the fairness of insured person or otherwise, for a partial or total rejection by the benefits intended to maintain, Bedrijfsvereniging of an application restore or improve their capacity for for the benefits referred to in the work, as well as for medical or previous paragraphs, made by the surgical benefits, on condition that person concerned or on his behalf." those benefits are provided with the consent of the person concerned or of his legal representative, without prejudice to the provisions of 3. After the Bedrijfsvereniging had Articles 25 and 28 (a) and (c). rejected the application of the person concerned, she took the case to the Raad van Beroep, 's Hertogenbosch, which, by 2. Further, the Bedrijfsvereniging may a judgment of 15 July 1975, upheld the • consider the persons referred to in decision at issue. The person concerned the previous paragraph, at their then appealed against that judgment to request or otherwise, for benefits the Centrale Raad van Beroep, Urecht, designed to improve their living which, by an order of 10 October 1978, conditions. decided to stay proceedings and, pursuant to Article 177 of the EEC 3. The persons referred to in the Treaty, to refer to the Court of Justice previous paragraphs may, subject to for a preliminary ruling on questions

If Question 1 is answered in the affir- — that, although the said Article 60 was mative, does that mean, having regard to repealed as from 1 October 1976, Article 19 (1) and (2) and Article 28 (1) Article 57 of the Algemene of the regulation, that the competent Arbeidsongeschiktheidswet [General institution of a Member State is not Law on incapacity for work], which empowered to grant such benefits to a entered into force on the same date, person who is entitled to invalidity contains an analogous provision benefits under the legislation of that empowering the Bedrijfsvereniging, Member State if the person concerned subject to certain conditions, to resides in the territory of another consider persons receiving a pension Member State and as a result the in respect of incapacity for work for legislation concerning sickness (and benefits covering inter alia health maternity) benefits of the latter State is care; applicable to him? — that the person concerned, being an employed person within the meaning Question 3 of Article 1 (a) (ii) of Regulation (EEC) N o 1408/71 of the Council, is a person "entitled to draw a pension" If Question 1 is answered in the within the meaning of Article 28 of negative, must Articles 19 and 28 of that regulation; the regulation be interpreted as excluding supplementary measures under the legislation of a Member State — that furthermore, as her husband was concerning invalidity pursuant to which also a worker within the meaning of the person concerned is entitled to Regulation No 1408/71, the person invalidity benefits if the person concerned was a "member of the concerned resides in the territory of family" within the meaning of Article another Member State and as a result the 1 (f) of the regulation with the result legislation concerning sickness (and that it would in the present case be maternity) benefits of the latter Member necessary to consider the provisions State is applicable to him?" of Article 19 (2) of that regulation;

Moreover, a more thorough examination II — W r i t t e n o b s e r v a t i o n s s u b - of Regulation No 1408/71 discloses that m i t t e d p u r s u a n t to A r t i c l e · the chapter on invalidity contains only 20 of Protocol on the provisions concerning cash benefits and S t a t u t e of t h e C o u r t of not benefits in kind. Therefore if the Justice chapter entitled "sickness and maternity" could not be applied to the provisions of the Laws on incapacity for work, no The Commission of the European provision of Community law would be Communities points out that the applicable to those domestic provisions questions referred to the Court by the to the extent to which they concern Centrale Raad van Beroep in substance benefits in kind. seek to ascertain whether and to what extent Community law, as laid down by In conclusion, the result should not Regulation N o 1408/71, prevents the depend on the type of legislation in

JORDENS-VOSTERS v BEDRIJFSVERENIGING VOOR DE LEDER- EN LEDERVERWERKENDE INDUSTRIE

Regulation N o 1408/71 does not in any way seek to introduce such a limitation At the sitting on 22 November 1979 the and does not preclude a Member State Commission of the European from supplementing the guaranteed Communities, represented by A. minimum laid down in that regulation. Haagsma, a member of the Legal Department of the Commission, presented oral argument. In view of the foregoing, the Commission proposes the following replies to the questions asked by the The Advocate General delivered his Centrale Raad van Beroep: opinion during the same sitting.

JUDGMENT OF 10. 1. 1980 — CASE 69/79

Decision

1 By letter of 25 April 1979 which was received at the Court on 27 April 1979, the President of the Centrale Raad van Beroep sent to the Court two orders of the Centrale Raad van Beroep of 10 October 1978 and 13 March 1979 respectively by which that court referred questions to the Court under Article 177 of the EEC Treaty concerning the interpretation 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).

2 Those questions arose out of a dispute concerning the refusal by the Netherlands social security institution, the Bestuur van de Bedrijfsvereniging voor de Leder- en Lederverwerkende Industrie, Tilburg, hereinafter referred to as the "Bedrijfsvereniging", to grant to a person receiving a pension for incapacity for work under the Netherlands law on insurance against protracted incapacity for work, hereafter referred to as "the W A O " , reimbursement of part of hospital expenses and cost of medicines incurred in 1973/74 for which she was not indemnified by any other social security institution.

"Question 1

Must the words 'sickness and maternity benefits' within the meaning of Article 4 (1) (a) and Chapter 1 of Regulation (EEC) N o 1408/71 be interpreted as also including in principle benefits under legislation concerning invalidity which are in the nature of medical or surgical benefits?

Question 2

If Question 1 is answered in the affirmative, does that mean, having regard to Article 19 (1) and (2) and Article 28 (1) of the regulation, that the competent institution of a Member State is not empowered to grant such benefits to a person who is entitled to invalidity benefits under the legislation of that Member State if the person concerned resides in the territory of another Member State and as a result the legislation concerning sickness (and maternity) benefits of the latter State is applicable to him?

Question 3

If Question 1 is answered in the negative, must Articles 19 and 28 of the regulation be interpreted as excluding supplementary measures under the legislation of a Member State concerning invalidity pursuant to which the person concerned is entitled to invalidity benefits if the person concerned resides in the territory of another Member State and as a result the legislation concerning sickness (and maternity) benefits of the latter Member State is applicable to him?"

8 In these circumstances and in view of the general reference in the opening words of Article 4 (1) to "all" legislation concerning the branches of social security set out from (a) to (h), it is appropriate to hold that Regulation No 1408/71 includes amongst sickness and maternity benefits referred to in lORDENS-VOSTERS v BEDRIJFSVERENIGING VOOR DE LEDER- EN LEDERVERWERKENDE INDUSTRIE

Article 4 (1) (a) all benefits provided in the case of sickness and maternity including health care, whatever the type of social legislation or whatever benefits are provided, as long as the legislation in question relates to a branch of social security which concerns them.

9 Therefore the answer to the first question should be that the words "sickness and maternity" benefits within the meaning of Article 4 (1) (a) and Chapter 1 of Title III of Regulation N o 1408/71 must be interpreted as including benefits under legislation concerning invalidity which are in the nature of medical or surgical benefits.

(b) The second question

io From the explanations given by the President of the Centrale Raad van Beroep referred to above it appears that that court wishes to know by its second question whether, if the disputed benefits are to be considered as sickness and maternity benefits within the meaning of Article 4 (1) (a) of Regulation N o 1408/71, that regulation, and in particular Articles 19 and 28 (1), must be interpreted as meaning that the competent institution of a Member State does not have the power to grant benefits of a medical or surgical nature to the recipient of an invalidity pension drawn under the legislation of that State who resides in a Member State other than the competent State, or if on the contrary, the said regulation does not preclude the said benefits from being granted to such an insured person when the granting of that benefit is permitted in particular circumstances by the above- mentioned social legislation.

12 Nor does such an interpretation gather any support from either the letter or the spirit of Articles 19 and 28 (1) of Regulation N o 1408/71. Article 19 (1) (a) lays down that benefits in kind to which a worker residing within the territory of a Member State other than the competent State is entitled shall be provided on behalf of the competent institution by the institution of the place of residence in accordance with legislation administered by that institution as though he were insured with it and Article 19 (2) extends those rules to members of the worker's family who are residing in the territory of a Member State other than the competent State. Article 28 (1) embodies the same principle by providing similar rules as regards inter alia recipients of a pension residing in the territory of a Member State other than the competent State. These provisions essentially confine themselves to laying down "rules of conflict" enabling the determination, in regard to a worker or recipients of a pension residing in a Member State other than the competent State, of the institution responsible for the payment of the benefits therein mentioned as well as the law applicable. In these circumstances, it would be misconstruing the letter and the spirit of Articles 19 and 28 (1) to interpret them as prohibiting the competent institution to grant social benefits to a worker or a recipient of a pension which are more favourable than those which it is bound to provide for them under the Community rules if the national legislation which that institution applies enables it in particular circumstances to grant such additional social security to those insured persons.

On those grounds,

T H E C O U R T (First Chamber),

in answer to the questions referred to it by the President of the Centrale Raad van Beroep by letter dated 25 April 1979, hereby rules:

1. The words "sickness and maternity benefits" within the meaning of Article 4 (1) (a) and Chapter 1 of Title HI of Regulation No 1408/71 must be interpreted as including benefits under legislation concerning invalidity which are in the nature of medical or surgical benefits.

2. Regulation No 1408/71, having regard also to Articles 19 and 28 (1) thereof, does not fetter the power of the competent institution of a Member State to grant sickness or maternity benefits, within the meaning of Article 4 (1) (a) of the said regulation, including benefits

OPINION OF MR WARNER — CASE 69/79

The questions referred to the Court by the Centrale Raad van Beroep should in my opinion be answered in the manner suggested by the Commission.