C-110/79

T H E INSURANCE OFFICER

on the interpretation of Article 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475) and of certain provisions 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) and in particular of Articles 18 and 46,

T H E COURT (Third Chamber)

composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

The facts and the arguments of the the claimant, who is over the age of 60, parties put forward during the written did not qualify for the grant of sickness procedure may be summarized as benefit in the case of a woman of her follows: age, the qualification being that she would be entitled to a Category A retirement pension on her own insurance, if she had made the necessary claim (Section 14 (2) of the Social Security Act 1975). In order to be I — F a c t s and p r o c e d u r e entitled to such a pension it was necessary for her to have complied with the conditions referred to in Section 28 (1) (b) of the Social Security Act 1975 1. Mrs Una Coonan, the claimant, of and specified in Schedule 3, Part 1, Irish nationality, attained the age of 60 paragraph 5 thereof, which require her on 30 April 1971. On 17 March 1973 she to have paid or, failing payment, to have took up residence in Great Britain having been credited with contributions over arrived from Ireland where she had duly certain periods of time. The local paid her contributions under the Irish tribunal took the view that, although the Social Welfare Acts 1963 to 1972. When claimant has paid such contributions in she took up residence in Great Britain Great Britain or has been credited with she had not yet reached the age entitling notional contributions for the period her to a retirement pension in Ireland during which she resided there, that is to (65) but was over the requisite age for say from 1973 to 1975, the payment of obtaining such a pension in Great Britain those contributions cannot be taken into (60). In Great Britain she was registered consideration, because her affiliation to under the National Insurance Scheme as the national insurance scheme for an employed person and paid full flat- sickness insurance was, as such, illegal. rate contributions there in 1973, 1974 and 1975, whenever her earnings were sufficient for such contributions to be payable. 3. After the claimant had appealed against that decision to the National Insurance Commissioner the latter stated in his decision of 10 July 1979 that the 2. On 14 November 1975 Mrs Coonan fact, which was not in dispute, that the claimed a cash sickness benefit but her claimant had at all material times been claim was disallowed first by the correctly and properly insured against Insurance Officer and then by the local industrial injuries did not entitle her to tribunal. According to the National receive cash sickness benefit for the Insurance Commissioner, who has made reasons mentioned above. Nevertheless, the reference for a preliminary ruling, the National Insurance Commissioner the ground of such disallowance was that considered that the claim raised

(a) Article 7 (2) of Regulation (EEC) No 1612/68 or (a) the said Article 18 or

(b) Article 3 of Regulation (EEC) No (b) the said Article 46. 1408/71 or 4. Whether the said Article 18 applies to the acquisition, retention, or recovery (c) some other provision of the EEC of the right to sickness benefit in a legislation. Member State, namely the United Kingdom, where the calculation of the rate of sickness benefit is 2. Whether a worker who is registered dependent on the calculation of a under the national insurance scheme notional retirement pension rate. of a Member State [in this case the United Kingdom] and who pays full insurance contributions to the 5. Whether paragraph (2) of the said competent institution of that Member Article 46 applies in cases where the State, namely the Department of calculation under paragraph (1) of Health and Social Security, London, Article 46 yields the answer 0.

COONAN ν INSURANCE OFFICER

(a) Article 7 (2) of Regulation No 1612/68 provides that a worker who The order making the reference was is a national of a Member State shall, received at the Court Registry on 16 July in the territory of another Member 1979. State, enjoy "the same social and tax advantages as national workers". The claimant died on 8 September 1979. By a letter of 10 October 1979 the (b) Article 3 of Regulation N o 1408/71 National Insurance Commissioner prescribes equal treatment for the informed the Court that he still persons resident in the territory of considered it necessary for a ruling to be one of the Member States to whom given on the questions referred to it. that regulation applies, on the one hand, and the nationals of that Member State, on the other hand, as In accordance with Article 20 of the far as concerns obligations and Protocol on the Statute of the Court of benefits "under the legislation of any Justice of the EEC written observations Member State". were submitted by the defendant in the main action, represented for this purpose by G. S. Kerrigan, Senior Legal (c) Article 18 (1) of Regulation No Assistant, Solicitor's Office, Department 1408/71 provides that "The of Health and Social Security, and by competent institution of a Member the Commission of the European State whose legislation makes the Communities, represented for this acquisition, retention or recovery of purpose by J. Forman, a member of its the right to [sickness and maternity] Legal Department, acting as Agent. benefits conditional upon the completion of insurance periods or periods of employment or residence Upon hearing the report of the Judge- shall, to the extent necessary, take Rapporteur and the views of the account of insurance periods or Advocate General the Court decided to periods of employment or residence open the oral procedure without any completed under the legislation of preparatory inquiry.

By an order of 21 November 1979 the National Insurance Commissioner is Court decided in accordance with Article called upon to resolve. 95 of the Rules of Procedure to assign this case to the Third Chamber of the Court. The principal issue raised by Question 1 would seem to be whether Community law leads to the conclusion that a worker, who has paid contributions under the leigislation of one Member II — W r i t t e n o b s e r v a t i o n s s u b - State but is not (or no longer) insurable m i t t e d p u r s u a n t to A r t i c l e in a second Member State under the 20 of the P r o t o c o l on the legislation of that second Member State, S t a t u t e of the C o u r t of is nevertheless to be treated in that Justice second State, from the date when he works there, as insured for the purpose of satisfying the conditions imposed by that legislation for the right to pay contributions to an insurance scheme. A — The observations of the Insurance Officer, the defendant in the main proceedings According to the Insurance Officer this question must be answered in the negative. He submits in the first place that the right claimed cannot be derived The Insurance Officer first calls from Article 7 (21) of Regulation No attention to the fact that his main 1612/68. That provision does not apply contention before the National Insurance to social security benefits because such Commissioner was that the competent benefits are not "social advantages" institution, within the meaning of Article within the meaning of the said Article 7. 1 (o) of Regulation No 1408/71, is not that of the United Kingdom since the claimant was not insured under British The provision of Community legislation legislation and that his alternative applicable to the subject of Question 1 contention was that none of the — which relates to social security — is provisions of Regulation No 1408/71 more properly Article 3 of Regulation allowed the claimant to assert that she No 1408/71, which lays down in the has satisfied the conditions to which cash field of social security the fundamental sickness benefits are made subject under principle of non-discrimination on national law. grounds of nationality referred to in Article 7 of the EEC Treaty. It is for consideration therefore whether Article 3 He goes on to state that this case raises requires a Member State to treat a problems of insurance and the correlative worker who has been insured under the entitlement to pay contributions carrying legislation of another Member State as the right to benefits. Since these matters insured under its own legislation. are reserved under domestic law to the Secretary of State who has the power to take decisions, the Insurance Officer Article 3, like the whole of Regulation makes specific reservations as to the No 1408/71, must be interpreted within relevance of questions 1, 2 and 3 as far the framework and bounds of Article 51 as concerns the problems which the of the Treaty. The subject-matter of that

He also submits that there is no principle Within reference to Question 3 he of territoriality which requires Member submits that Article 1 (o) (i) of Regu­ States, in the absence of any Community lation No 1408/71 provides that law provision to the contrary, to treat "competent institution" means the facts occurring in another Member State institution with which the person as equivalent to facts occurring in its concerned is insured at the time of the own territory (cf. judgment of 28 June application for benefit. In the context of 1978 in Case 1/78, Patrick Christopher Articles 18 and 46 of that regulation the Kenny ν Insurance Officer [1978] ECR "competent institution" must be the one 1489 and judgment of 9 July 1975 in with which the person concerned is Case 20/75, Gaetano d'Amico ν insured for the purposes of the benefits Landesversicherungsanstalt Rheinland- to which each of those articles applies, Pfalz [1975] 1 ECR 891). Where the that is to say sickness and maternity legislation of one Member State makes benefits in the case of Article 18 and old- the right to be insured under a social age and death benefits in the case of insurance scheme and to pay contri­ Article 46. The Insurance Officer also butions when over the pensionable age refers to a passage in the Opinion of Mr conditional upon insurance in that State Advocate General Warner in Case before pensionable age, that condition 103/75, Walter Th. Aulich ν Bundesversi- may not be deemed to be satisfied by cheningsanstalt für Angestellte [1976] insurance in another Member State 1 ECR 709, to the effect that "where the under the legislation of the latter. That is provisions of those Chapters use the not discriminatory because the provisions concept of 'benefit', they refer to benefits of national legislation would apply to be granted on the occurrence of the equally to nationals of the United specific risk to which the Chapter in Kingdom. Therefore the Court's reply to question relates". He also submits that the first question should be that Article 3 the philosophy underlying Regulation of Regulation No 1408/71 does not No 1408/71 is that in the case of contri-

butory short-term benefits a person is Β — Observations of the Commission covered by the legislation of a Member State for a particular benefit only if he has paid contributions in that State towards that benefit. The answer to the According to the Commission, Regu­ third question should therefore be in the lation No 1408/71 merely coordinates negative. the different social security schemes of the Member States but does not harmonize them, with the result that the national schemes remain applicable in each of the Member States, subject With reference to Questions 4, 5, 6 and nevertheless to observance of the 7 the Insurance Officer contends that principles of Community law such as Article 18 (sickness and maternity) of equality of treatment (Article 7 of the Regulation No 1408/71 has no EEC Treaty and Article 3 (1) of Regu­ application where entitlement to sickness lation No 1408/71), the obligation to benefit in a Member 'State does not aggregate periods and to allow benefits depend on the satisfaction of the contri­ to be exported (Article 51 of the EEC bution conditions for sickness benefit but Treaty and the relevant provisions of is derived from the right to a retirement Regulation No 1408/71). pension. In such a case it is Articles 45 and 46 (old-age pensions) which are the relevant applicable provisions, even in the matter of sickness benefit. The first question to be settled is whether Mrs Coonan, the claimant in the main action, is a worker for the purposes of the application of Community social insurance legislation. Article 46, and in particular paragraph Having regard to Article 13 of Regu­ (2) thereof, which is the sole provision lation No 1408/71 it is necessary for the which may be taken into consideration in purpose of applying Regulation No this case, is directed only to determining 1408/71 to this case to refer in the first the amount of benefit payable by each place to the definition of a worker Member State. Article 45 determines contained in Article 1 (a) (ii) of that entitlement. In the dispute which led to regulation, supplemented by paragraph 1 the main action that provision cannot be of Annex V, point I, as amended by relied on because the claimant is not a Article 3 (2) (a) of Council Regulation person who has been subject to the (EEC) No 1517/79 of 16 July 1979 legislation of two or more Member (Official Journal L 185 of 1979, p. 1). States and accordingly not a person to However, since according to section 6 whom Chapter 3 of Regulation No (1) (b) of the Social Security Act 1975 1408/71 applies. no primary class 1 contribution by the employed earner was payable by anyone in the claimant's situation the latter could not be compulsorily insured in respect of cash sickness benefit. The Insurance Officer therefore submits However, it appears that the claimant that the answers to Questions 4 and 6 could and had to pay contributions in should be in the negative and the answer respect of insurance against industrial to Question 5 in the affirmative, so that injuries pursuant to the National there is no need to answer Question 7. Insurance (Industrial Injuries) Act 1965

and that she was insured (Section 2 (1) law has no effect on the application of (a) and Section 50 (1) of the Social Community law. Security Act 1975) for that category of benefits. In these circumstances the question arises as to whether during the period in question she does not have to be treated as a "worker" for the With reference to Article 18 of Regu­ purposes of the application of Article 1 lation No 1408/71 the Commission (a) (i) of Regulation No 1408/71 as far points out that the word "benefits" in as concerns industrial injuries benefits paragraph (1) of that article can apply and whether the effect of this is not that only to sickness and maternity benefits, she has the same status for the purposes since the article relates solely to those of the application of the provisions of the benefits. said regulation relating to sickness benefits. Thus it is necessary to know whether the concept "worker" has been used in each case solely in relation to the particular category of benefits in It also points out that the British question or whether it has to be accepted legislation which has to be taken into that any person who is a "worker" in consideration in this case does not make relation to one category of benefits is the acquisition of the right to sickness automatically a worker in relation to all benefit conditional, as far as concerns the others. persons in the same position as that of the claimant in the main action, on the completion of periods of insurance, residence or employment; that legislation makes the acquisition of the right to sickness benefit conditional on the existence of the right to a Category A In the view of the Commission there is retirement pension under Section 28 of no need to answer this question, because the Social Security Act 1975. Regulation No 1408/71 does not compel Consequently Article 18 has no relevance a Member State to insure nationals of to the outcome of the main action, the other Member States where the nationals of that State have no right to be insured under their national legislation. Neither Article 3 of Regu­ lation No 1408/71, nor Article 7 (2) of With reference to Article 45 (1) of Regu­ Regulation No 1612/68, nor for that lation No 1408/71 relating to aggre­ matter any other Community law gation of qualifying periods in relation to provision can affect that situation, since old-age pension insurance the none of those provisions can create Commission points out that the rights under national law if those rights combined provisions of paragraph 17(1) are not already vested in the nationals of of point I of Annex V to Regulation No the Member State in question (cf. 1408/71, as amended by Article 3 (2) (h) judgment of 12 July 1979 in Case of the above-mentioned Regulation No 266/78, Bruno Brunori ν Landesversicbe- 1517/79, in conjunction with the rimgsanstalt Rheinprovinz [1979] ECR). provisions of Schedule 3, Part I, section The fact that a mistake has occurred — 5 of the Social Security Act 1975, as appears to have happened in this case indicate that Great Britain takes into when the claimant was allowed to account insurance periods or periods of contribute to the National Insurance residence completed under the legislation Scheme — in the application of national of the other Member States for the

Decision

1 By an order of 10 July 1979, received at the C o u r t of Jusctice on 16 July 1979, the National Insurance Commissioner referred to the Court, pursuant to Article 177 of the E E C Treaty, a number of questions on the interpret- ation of Article 7 of Regulation (EEC) N o 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475) and also of various provisions of Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed

COONAN ν INSURANCE OFFICER

persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416).

2 Those questions have been referred to the Court in connexion with a dispute between Mrs Coonan, an Irish national, and a local social security officer in the United Kingdom on the question whether, and, if so, under what conditions, a national of a Member State — in this case of Ireland — who, after being employed in that Member State, came to the United Kingdom and worked there before he had reached pensionable age in his country of origin but after he had reached pensionable age in the United Kingdom, is entitled in that second Member State to the cash sickness benefits provided for workers under its social security legislation.

3 The legislation in force in the United Kingdom does not grant him such entitlement. In fact if a worker continues to be employed as such beyond pensionable age, under that legislation he is entitled thereafter to cash sickness benefits only if he would have been entitled to a particular kind of retirement pension under national legislation in the event of his ceasing to work.

(a) Article 7 (2) of Regulation (EEC) No 1612/68 or

(b) Article 3 of Regulation (EEC) No 1408/71 or

(c) some other provision of the EEC legislation".

6 It should first of all be noted that the principal aim of Regulation (EEC) No 1612/68 of 15 October 1968 is to ensure that in each Member State workers from the other Member States receive treatment which is not discriminatory by comparison with that of national workers by providing for the systematic application of the rule of national treatment as far as all conditions of employment and work are concerned. It is not the purpose of that regulation to create rights by virtue of insurance periods completed in another Member State if such rights, in the case of the nationals of the host State, do not derive from national provisions. There are therefore no grounds for having recourse to the provisions of Regulation No 1612/68 in a case such as this.

7 As far as Regulation No 1408/71 is concerned the first question amounts in substance to asking whether that regulation gives a worker in the claimant's

COONAN ν INSURANCE OFFICER

— can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, or

JUDGMENT OF 24. 4. 1980 — CASE 110/79

— failing such criteria, is insured for some other contingency specified in Annex V under a scheme for employed persons either compulsorily or on an optional continued basis".

11 On the other hand, according to Article 3 (1) of the said regulation:

"Subject to the special provisions of this regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State".

12 The effect of those two provisions when read together is that it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme provided always that in this connexion there is no discrimination between nationals of the host State and nationals of the other Member States. The Court acknowledged in its judgment of 12 July 1979 in Case 266/78 Brunori [1979] ECR that national legislatures are competent in this field.

16 The replies given above mean that the fourth, fifth, sixth and seventh questions relating to Articles 18 and 46 of Regulation No 1408/71 no longer require to be answered.

17 Since the question whether persons in the situation of the claimant may derive a right to be affiliated from the provisions of the Reciprocal Agreement concluded between Ireland and the United Kingdom on 29 March 1960 and the Agreement between Ireland and the United Kingdom of 14 September 1971 on social security has been raised during the proceedings before the Court of Justice, it is necessary to state that it is for the national court or tribunal to ascertain whether the conditions for implementing those agreements are present in the dispute before it and whether one or other of those agreements deals with the right to be affiliated to the social security scheme of the United Kingdom in a case such as that of the claimant.

Costs

18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the appeal pending before the National Insurance Commissioner the decision as to costs is a matter for the National Insurance Commissioner.

JUDGMENT OF 24. 4. 1980 — CASE 110/79

On those grounds,

A. Van Houtte H. Kutscher Registrar President