C-143/79

JUDGMENT OF 22. 5. 1980 — CASE 143/79

concerned to clarify the scope of or appeal in question. That power subparagraph (ii) of that paragraph belongs exclusively to the authority, vis-à-vis British legislation. institution or court of the Member State under the legislation of which 2. A person who is entitled under the the benefit must be awarded and to legislation of a Member State to which the claim, declaration or appeal benefits covered by Regulation No must in all circumstances be 1408/71 by virtue of contributions forwarded. previously paid compulsorily does not lose his status as a "worker" within 5. Article 8 of Regulation No 574/72 the meaning of Regulations Nos applies only to the extent to which a 1408/71 and 574/72 by reason only claim by the person concerned may in of the fact that at the time when the fact be, satisfied by the application of contingency occurred he was no the legislation of two or more longer paying contributions and was Member States and only in regard to not bound to do so. the period for which the claimant may claim benefits under the legislation 3. The phrase "legislations of two or specified by that article. more Member States", which occurs On the other hand that provision does in Article 8 of Regulation No 574/72, not preclude a person who has must be understood as also including exhausted the maximum entitlement the provisions of Community regu- awarded by the State of the lations. confinement from benefiting for an 4. Article 86 of Regulation No 1408/71 additional period from benefits must be interpreted as meaning that awarded by other legislation to which where a claim, declaration or appeal she has been subject and which, for is submitted to an authority, reasons of the welfare of the mother institution or court of a Member State and child, allows a longer period of other than that under the legislation leave from work. Indeed, such a result of which the benefit must be awarded, could not be regarded as coming that authority, institution or court has within the category of "unjustified no power to determine the overlapping" which the provision in admissibility of the claim, declaration question seeks to prevent.

upon the interpretation of Article 86 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) and Article 8 of Regu­ lation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation N o 1408/71 (Official Journal, English Special Edition 1972 (I), p. 159), and of the meaning of "worker" for the purposes of both regulations,

T H E COURT (Second Chamber),

composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: F. Capotorti Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

claim was not made within the requisite notwithstanding that during that time und that she hat not proved period she has paid no contributions continuous good cause for the delay in and is not liable to pay contributions. making the claim. Her appeal to a local tribunal was dismissed and Mrs Walsh further appealed to the National Insurance Commissioner. During this (2) Whether a worker who satisfies the second appeal the point was raised that a contribution conditions for maternity right to benefit during the stay in Ireland benefit (either at the full or at a did not exist under British legislation reduced rate) under the legislation of alone and that since Mrs Walsh was no two or more Member States (in this longer a "worker" within the meaning of case those of the United Kingdom Regulation No 1408/71, Articles 19 and and the Republic of Ireland) is to be 22 of the regulation did not apply either. regarded, for the purpose of Article The additional question was raised 8 of Regulation (EEC) No 574/72 as whether, if Regulation No 1408/71 "entitled to claim maternity benefits" applied, the place of confinement was under those legislations the determining factor under Article 8 of Regulation No 574/72 and whether the case should not therefore be referred to (a) whether or not such worker falls the Irish authorities pursuant to Article to be disqualified for receipt of 86 of Regulation No 1408/71. such benefits under . the legislation of one or more of such Member States on the ground of delay in claiming or on other grounds; or 3. By an order of 11 September 1979 the National Insurance Commissioner (b) only if the claim of such worker deferred a decision on the matter and would in fact succeed under the applied to the Court of Justice under legislation of all such Member Article 177 of the EEC Treaty for a States. preliminary ruling on the following questions:

be granted exclusively under the case of a claim which should have legislation of the Member State in been, but has not been, submitted, in whose territory the confinement took order to comply with the legislation place (in this case the Republic of of one Member State (in this case Ireland) operates to exclude the the Republic of Ireland), within a claimant from obtaining maternity specified period to an authority, benefits in Member States where the institution or court of that State but confinement did not take place (in has been submitted, outside that this case the United Kingdom) period, to a corresponding statutory institution or court of another Member State (in this case the Department of Health and Social Security, London, United Kingdom). (a) only in respect of the period for which the claimant is entitled to claim maternity benefits under the legislation of the Member State where the confinement took place; or 4. In the United Kingdom maternity benefits are granted for a maximum period of 11 weeks before and seven weeks after confinement (Section 22 (2) of the Social Security Act 1975). A prior (b) in respect of all maternity condition for the grant of those benefits benefits in relation to that is that the claimant must have paid confinement in those Member contributions as a worker during a States where the confinement did certain qualifying period (Section 22 (1) not take place. (b) and Schedule 3, Part I, paragraph 3, of the Social Security Act). A claim for maternity benefit may be made either before or after confinement but if it is made after confinement the benefits are granted only for a maximum period of seven weeks (Regulation 6 (1) (b) of the (5) Whether the said Article 8, to the Social Security (Maternity Benefit) Regu­ extent to which it operates to lations, S.I. 1975, No 553), and the claim exclude the claimant from obtaining must be made within three weeks maternity benefits in Member States following confinement. If it is made after where the confinement did not take that period, benefits are generally place is valid in so operating and is granted only from the week in which the not ultra vires. claim was made and are maintained until the end of the sixth week after that in which confinement occurred (Social Security (Claims and Payments) Regu­ lations 1975, Schedule 1, S.I. 1975, No 560). Claims made after the prescribed time has expired may nevertheless be (6) Whether the directions in Article 86 accepted if good cause for the delay in of Regulation (EEC) No 1408/71 as making the claim is proved. (Section 82 to the forwarding of claims to the (1) of the Social Security Act and Regu­ competent authority apply in the lation 13 of S.I. 1975, No 560).

5. The provisions of the Irish Social territory of one of these Member States, Welfare Act 1952 and of the exclusively under the legislation of the implementing regulations concerning Member State to which the worker was maternity benefits correspond in the last subject." main to those of the United Kingdom. However, in Ireland the benefits are granted for a maximum period of six 8. Article 86 of Regulation No 1408/71 weeks before and six weeks after contains the rules in relation to claims, confinement. declarations or appeals submitted to an authority, institution or court of a Member State other than the competent

In such security dealt with in this regulation, a case the authority, institution or court under a social security scheme for all receiving the claim, declaration or appeal residents or for the whole working popu- shall forward it without delay to the lation . . . ; " . competent authority, institution or court of the former State either directly or through the competent authorities of the 7. The rules applicable in the event of Member State concerned. The date on the overlapping of entitlement to which such claims, declarations or maternity benefits under the legislatipn appeals were submitted to the authority, of two or more Member States are institution or court of the second State contained in the first paragraph of shall be considered as the date of their Article 8 of Regulation No 574/72 of the submission to the competent authority, Council of 21 March 1972 fixing the institution or court." procedure for implementing Regulation No 1408/71 on the application of social security schemes to employed persons 9. The order by the National Insurance and their families moving within the Commissioner making the reference was Community (Official Journal, English received at the Court Registry on 14 Special Edition 1972 (I), p. 159), which September 1979.

WALSH ν NATIONAL INSURANCE OFFICER

The Council, represented by its Legal 17/76, Brack ν Insurance Officer [1976] Adviser, J. Carbery, acting as Agent, ECR 1429. reserved the right to lodge written obser­ vations in order to uphold the validity of Article 8 of the regulation, should questions concerning this subject be The Commision adds that according to pursued and should the reasons for them Article 1 (c) of Regulation No 574/72 be explained in the subsequent pleadings. the definitions in Article 1 of Regulation No 1408/71 are the same as those for Regulation No 574/72.

1. The Commission points out that the Second question definition of "worker" in Article 1 (a) (ii) of Regulation No 1408/71 refers to a person covered for a contingency and does not provide that such person must 1. The Commission refers to Article 8 be compulsorily insured at the time a of Regulation No 574/72 on the over­ contingency arose. In its opinion, a lapping of benefits, stating that for the person in the position of Mrs Walsh is to principle of overlapping to operate there be regarded as a worker so long as must be a real or effective entitlement to entitlement to benefit claimed depends receipt of the benefit concerned. It points upon the contribution paid by her, or on out on this point that were alternative (a) her behalf, as a worker under a of the question to prevail, then the compulsory scheme covered by the said situation might be envisaged where a article. On this point the Commission worker having entitlement to maternity refers to paragraph 18 and especially benefit in both State A and State Β was paragraph 21 of the decision of the confined in State Β where she was Court of 29 September 1976 in Case disqualified from receipt of the benefit

JUDGMENT OF 22. 5. 1980 — CASE 143/79

by reason of a late claim and had no 2. The observations of the Insurance entitlement from State A because of the Officer are along the same lines. He application of Article 8. relies in particular upon the judgment of the Court of 7 November 1973 in Case 51/73, Bestuur der Sociale Verzekerin- gsbank vSmieja ([1973] ECR 1213).

2. The Insurance Officer suggests that 1. The Commission recalls that Article 1 the reply to the fourth question should (j) of Regulation No 1408/71 defines the be based in particular on the judgment of expression "legislation" to mean: "All the Court of 13 July 1976 in Case 19/76, laws, regulations and other provisions Triches, [1976] ECR 1243, and of 6 and all other . . . implementing measures March 1979 in Case 100/78, Rossi, . . . relating to the sectors of social [1979] ECR 831, that where the right to security and schemes for social security maternity benefits in a Member State . . . " Since Regulations Nos 1408/71 and other 'than the State of confinement is 574/72 are binding in their entirety and not acquired by virtue of national are directly applicable, the Commission legislation alone or the amount of argues that they form part of the social maternity benefits is less than the amount security law of each Member State. paid in the State of confinement Article 8 totally excludes the claimant from obtaining maternity benefits in the first Member State. Where, however, the In its opinion it follows that alternative right to benefits is acquired by virtue of (a) of the question is the appropriate national legislation alone and the one. benefits are greater in amount than in

WALSH ν NATIONAL INSURANCE OFFICER

the State of confinement Article 8 sequently ends for reasons of national operates only to exclude the claimant law or because it has been exhausted, from obtaining an amount of maternity then any underlying entitlement which benefits in the first Member State equal might continue to exist under the other to the amount of maternity benefits paid Member State's legislation would revive. in the State of confinement.

The Commission further observes that where the maternity benefits payable by 2. The Insurance Officer thinks that it the Member State where the claimant follows from the answer which he was not confined, are, or become, higher proposed for Question 4 that Article 8 of than those in the State where she was Regulation No 574/72 is valid only to confined, the former State is obliged the extent to which it does not, without under the judgment of the Court in Case cause, deprive a worker of the benefit of 100/78, Rossi, to pay a supplement so as part of the legislation of a Member State. to ensure that the worker shall receive There is no need in his opinion to the higher of the allowances due. consider the validity of Article 8 in this Likewise it may be said that if case since Mrs Walsh was disqualified entitlement to allowances in a Member for receipt of maternity allowance under State, which is not suspended, sub­ United Kingdom legislation by reason of

JUDGMENT OF 22. 5. 1980 — CASE 143/79

her absence abroad. The Insurance submission. It adds that any refusal by Officer thinks this is the effect of the the competent authority to allow the Court's judgment in Triches, Case 19/76, claim may itself form the subject of an even though it is recognized that the appeal within the competent State. In its maternity allowance which Mrs Walsh opinion it would therefore be unac- was entitled to claim under United ceptable if a migrant worker were to be Kingdom law may be more than that deprived of these possibilities by virtue of payable under the legislation of the State a decision arrived at by an agent. · of confinement.

WALSH ν NATIONAL INSURANCE OFFICER

the context of a dispute concerning the maternity benefit due to a person, Mrs Margaret Walsh, who worked both in the United Kingdom and in the Republic of Ireland and who, after bearing a child in Ireland on 31 July 1975, returned to live in the United Kingdom on 21 August 1975.

2 Mrs Walsh, who, according to the information provided, appears to have satisfied the conditions for claiming maternity benefit in Ireland, did not however lodge a claim for such benefit in that country. On the contrary, after her return to the United Kingdom she submitted a claim on 3 October 1975 to the British Insurance Officer for the maternity benefit payable by virtue of the United Kingdom legislation. Although Mrs Walsh satisfied the contribution conditions for the acquisition of a right to benefit at a reduced rate the Insurance Officer disallowed the claim on the ground that it had no't been made within the requisite time and that there was no good cause for the delay.

3 Following the dismissal of the appeal which Mrs Walsh made to a local tribunal, the claimant brought a further appeal before the National Insurance Commissioner. In the course of the proceedings before the Commisioner certain issues arose concerning the application of Community rules to the case in question and the Commissioner requested the Court to give a pre­ liminary ruling on the following questions:

"(1) Whether a person who satisfies the contribution conditions of one Member State (in this case the United Kingdom) for entitlement to maternity allowance (in this case at a reduced rate) throughout the period for which maternity allowance is claimed in that State is a 'worker' for the purpose of (a) Regulation (EEC) No 1408/71; and (b) Regulation (EEC) No 574/72, notwithstanding that during that period she has paid no contributions and is not liable to pay contributions.

(a) only in respect of the period for which the claimant is entitled to claim maternity benefits under the legislation of the Member State where the confinement took place; or

(b) in respect of all maternity benefits in relation to that confinement in those Member States where the confinement did not take place.

WALSH ν NATIONAL INSURANCE OFFICER

(5) Whether the said Article 8, to the extent to which it operates to exclude the claimant from obtaining maternity benefits in Member States where the confinement did not take place is valid in so operating and is not ultra vires.

(6) "Whether the directions in Article 86 of Regulation (EEC) N o 1408/71 as to the forwarding of claims to the competent authority apply in the case of a claim which should have been, but has not been, submitted, in order to comply with the legislation of one Member State (in this case the Republic of Ireland), within a specified period to an authority, institution or court of that State but has been submitted, outside that period, to a corresponding statutory institution or court of another Member State (in this case the' Department of Health and Social Security, London, United Kingdom)."

4 Whereas questions 1, 3 and 6 concern provisions or expressions of general application, questions 2, 4 and 5 involve specific issues and must be considered in the light of the objectives of the benefits in question. It is appropriate therefore to deal with these two groups of questions in turn.

6 As the aformentioned judgment of 29 September 1976 also stressed, it follows from certain provisions of Regulation No 1408/71 that it applies to certain categories of persons who, when the contingency occurs, do not have the status of "employed persons" within the meaning of the law of employment. It would be contrary to the spirit of those provisions and to one of the essential objectives of the regulation, which is to guarantee to workers who move within the Community their accrued rights and advantages, to exclude from the scope of the regulation — by giving a restrictive interpret- ation to the definition of the term "worker" — any other case where, under the relevant legislation, the insurance continues to cover the insured against risks but the insured is no longer bound to pay contributions.

7 The answer to the first question should therefore be that a person who is entitled under the legislation of a Member State to benefits covered by Regu- lation No 1408/71 by virtue of contributions previously paid compulsorily does not lose his status as a "worker" within the meaning of Regulations Nos 1408/71 and 574/72 by reason only of the fact that at the time when the contingency occurred he was no longer paying contributions and was not bound to do so.

8 The expression "legislation", the interpretation of which is called for by the third question, is to be found in a great number of provisions in the two regulations. It is included among the definitions contained in Article 1 of Regulation No 1408/71 for the purpose of the application of the regulation. Even though the problem of interpretation raised by the question does not find an express answer in that definition, the very existence of such a general provision implies that the answer must, so far as possible, be based upon a uniform interpretation. In its judgment of 7 November 1973 in Case 51/73 Bestuur der Sociale Verzekeringsbank ν Smieja [1973] ECR 1213 the Court construed that concept, as it occurs in Article 10 (1) of Regulation No 1408/71, as embracing the provisions of Community law relevant to that

12 The answer to the sixth question should therefore be that Article 86 of Regu­ lation No 1408/71 must be interpreted as meaning that where a claim,

JUDGMENT OF 22. 5. 1980 — CASE 143/79

declaration or appeal is submitted to an authority, institution or court of a Member State other than that under the legislation of which the benefit must be awarded, that authority, institution or court has no power to determine the admissibility of the claim, declaration or appeal in question. That power belongs exclusively to the authority, institution or court of the Member State under the legislation of which the benefits must be awarded and to which the claim, declaration or appeal must in all circumstances be forwarded.

Q u e s t i o n s 2, 4 and 5

13 The second and fourth questions seek to have specified the scope of Article 8 of Regulation No 574/72 as regards maternity benefit of the kind at issue in this case and the fifth question is concerned with the validity of that article as it is interpreted by the Court in answer to the other two questions.

14 Article 8 of Regulation No 574/72 is worded as follows :

17 It is in the light of those aims that the questions relating to the scope of Article 8 must be answered. Overlapping of benefits occurs only in so far as a claim for benefits may actually be satisfied by the application of the legislation of two or more Member States. As the Commission has properly stressed, giving Article 8 a wider application might indeed, in cases such as the present, result in the person concerned receiving no allowance at all. It would be contrary to the objectives of the regulations were a rule against overlapping of benefits to produce such a result. The same considerations and, especially, the wording of the said Article 12 of Regulation No 1408/71 favour alternative (a) of the fourth question, which concerns the problem raised by the different periods of benefit provided for by the legislation of the various Member States. It is true that that alternative might have the result that a person who has exhausted the maximum entitlement awarded by the State of the confinement may benefit for an additional period from benefits awarded by other legislation to which she has been subject and which, for reasons of the welfare of the mother and child, allows a longer period of leave from work. However, such a result may not be described as an "unjustified overlapping" and, in the absence of an express provision to that effect, it may hardly be presumed that it is excluded by Article 8 of Regulation No 574/72.

18 The answer to the second and fourth questions should therefore be that Article 8 of Regulation N o 574/72 must be interpreted as applying only to the extent to which a claim by the person concerned may in fact be satisfied

WALSH ν NATIONAL INSURANCE OFFICER

On those grounds,

T H E COURT (Second Chamber),

in answer to the questions submitted to it by the National Insurance Commissioner by order of 11 September 1979, hereby rules:

1. 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 and Regulation No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71 must be interpreted as meaning that a person who is entitled under the legislation of a Member State to benefits covered by Regulation No 1408/71 by virtue of contributions pre­ viously paid compulsorily does not lose his status as a "worker" within the meaning of the said two regulations by reason only of the fact that at the time when the contingency occurred he was no longer paying contributions and was not bound to do so.

2. The phrase "legislations of two or more Member States", which occurs in Article 8 of Regulation No 574/72, must be understood as also including the provisions of Community regulations.

Delivered in open court in Luxembourg on 22 M a y 1980.

A. V a n H o u t t e A. Touffait Registrar President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 27 MARCH 1980 1

Mr President, that article, doubts having been cast on Members of the Court, its conformity with Article 51 of the EEC Treaty.

1. In this reference for a preliminary The facts may be summarized as follows. ruling an interpretation is sought not only of two provisions of Regulation No 1408/71 of the Council of 14 June 1971 Mrs Margaret Walsh, the claimant in the on the application of social security main proceedings, commenced em- schemes to employed persons and their ployment in the United Kingdom and families moving within the Community, became insured as from 21 July 1967 but also, and from various aspects, under the British national insurance Article 8 of Regulation No 574/72 of the scheme. During the period between Council of 21 March 1972 which fixes August 1973 and January 1974 she the procedure for implementing the first- worked in Ireland and-paid the pre- mentioned regulation. Moreover, a scribed insurance contributions to the question is raised as to the validity of Irish insurance authorities. Thereafter I — Translated from the Italian.