C-482/93

JUDGMENT OF 26. 10. 1995 — CASE C-482/93

J U D G M E N T O F T H E C O U R T (Fifth Chamber) 26 October 1995 *

In Case C-482/93,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Arrondissementsrechtbank, Amsterdam (Netherlands), for a preliminary ruling in the proceedings pending before that court between

S. E. Klaus

and

composed of: D. A. O. Edward (Rapporteur), President of the Chamber, J. C. Moitinho de Almeida, C. Gulmann, P. Jann and L. Sevón, Judges,

Advocate General: A. M. La Pergola, Registrar: H. A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— the Bestuur van de Nieuwe Algemene Bedrijfsvereniging, by C. R. J. A. M. Brent, Director of the Administration and Legal Affairs Section of the 'Gemeenschappelijk Administratiekantoor', acting as Agent,

— the Commission of the European Communities, by M. Patakia and B. J. Drijber, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

1 By order of 15 October 1992, received at the Court on 28 December 1993, the Arrondissementsrechtbank, Amsterdam, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions concerning the interpretation of Article 25(2), Article 35(3) and Article 71(1) of Council Regu- lation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter 'Regulation N o 1408/71')·

2 Those questions were raised in proceedings between Mrs Klaus and the Nieuwe Algemene Bedrijfsvereniging (the New General Occupations and Trades Associa- tion, hereinafter 'the N A B ' ) concerning the grant of cash sickness benefits.

3 F r o m December 1985 until July 1987, Mrs Klaus, a Netherlands national, worked as a nurse in the Netherlands, on which basis she was insured under the Ziektewet (Sickness Law, hereinafter 'the ZW). In July 1987, she ceased work on account of back complaint, whereupon her insurance cover under the ZW came to an end.

4 In June 1988, after attending a course in tourism management for eight months, Mrs Klaus went to Spain to work as a hostess and public relations assistant.

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sickness benefit under the Z W with effect from 7 November 1989 because at the time when her sickness insurance cover became effective on 20 October 1989 she was already unfit for work.

io The Z W is the basis of the general sickness insurance scheme in the Netherlands. In order to qualify for cash sickness benefits under that legislation, the claimant must be unfit for work (as a rule, this means unfit for the work in which he was last engaged) on account of illness (Article 19). In certain circumstances, sickness insurance cover may be maintained after the end of the insurance period, as if the beneficiary were stul insured, if incapacity for work occurs within a short period (one month or eight days, depending on the case) following termination of the insurance cover (Article 46).

n The occupational insurance association may refuse sickness benefit, in whole or in part, if the person concerned was already unfit for work at the time when the insurance cover became effective (Article 44(1), opening words and subparagraph 1(1)). The aim of that rule is to prevent abuse, since Netherlands legislation on incapacity for work makes no provision for conducting a medical examination enabling certain risks to be excluded from the insurance cover when it becomes effective.

i2 The N A B relied on those provisions in refusing, by decision of 24 April 1990, to grant Mrs Klaus sickness benefits under the ZW.

n Mrs Klaus appealed against that decision to the Arrondissementsrechtbank, Amsterdam, which took the view that the dispute raised issues concerning the interpretation of Article 25(2), Article 35(3) and Article 71(1) of Regulation N o 1408/71.

' 1 . Having regard inter alia to Article 48 of the E E C Treaty, must Article 35(3) of Regulation N o 1408/71 be interpreted to the effect that sickness benefits

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cannot be refused, pursuant to a national risk-selection provision such as that contained in Article 44(l)(a)(l) of the ZW, to a worker who (almost immedi- ately) following a period in which he became covered by the legislation on sickness benefit, is insured in the Member State whose national legislation contains a risk-selection provision like that mentioned above?

2. If the answer to Question 1 is in the affirmative, does that interpretation also apply where the unfitness for work which led to the application of a national risk-selection provision arose during a period of insurance against the financial consequences of sickness under the Member State's legislation of which the risk-selection provision also forms part?

3. Having regard to Article 25(2) of Regulation N o 1408/71, does it make any difference to the way the first question is answered whether a worker, before working as an employed person in the competent Member State, was in the situation referred to in Article 71(l)(a)(ii) or Article 71(1 )(b)(ii) of Regulation N o 1408/71?

2i Article 51 of the Treaty entrusted the Council with the task of adopting such mea- sures in the field of social security as are necessary to provide freedom of move- ment for workers. The provisions of Regulation N o 1408/71 must therefore be interpreted in the light of that objective (see, in particular, the judgment in Case C-406/93 Reichling v INAMI [1994] ECR 1-4061, paragraph 21).

22 One of those provisions which should be noted is Article 18(1), which provides that: 'The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent

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necessary, take account of periods of insurance, employment or residence com- pleted under the legislation of any other Member State as if they were periods completed under the legislation which it administers.'

23 As the Commission pointed out, in the present case that provision prevents the competent institution from treating the effective date of the insurance cover under the legislation which it administers as the starting point for the periods of insur- ance which are to be taken into account for the purposes of entitlement to sickness benefits.

28 As the Advocate General notes at point 13 of his Opinion, the fact that a migrant worker may be out of work for a short period during which he is physically mov- ing from one Member State to another is inherent in the normal exercise of the right to exercise freedom of movement.

29 Furthermore, in the present case the representative of the N A B informed the Court at the hearing that if all of Mrs Klaus' working life had been spent in the Netherlands, that interlude would not have been used as a ground for refusing the benefit sought.

30 In the light of the foregoing, the reply to the questions referred by the national court must be that Article 18(1) of Regulation N o 1408/71 is to be interpreted as meaning that, where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it

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administers. The fact that, having transferred his residence from one Member State to another Member State, the person concerned was for a short period neither employed nor registered as seeking employment in the latter State does not inter- rupt the continuity of the insurance periods completed by that person or preclude application of the aggregation rule laid down by Article 18(1) of Regulation N o 1408/71.

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already unfit for work at the time when he became insured under the scheme which it establishes.

2. Article 18(1) of Regulation N o 1408/71 is to be interpreted as meaning that, where the applicable legislation of a Member State makes the grant of cash sickness benefits subject to the condition that the insured person was not already unfit for work at the time when he became insured under the scheme which it establishes, the competent institution must also take into account periods of insurance completed by that person under the legislation of another Member State, as if those periods had been completed under the legislation which it administers.

3. The fact that, having transferred his residence from one Member State t o another Member State, the person concerned was for a short period neither employed nor registered as seeking employment in the latter State does not interrupt the continuity of the insurance periods completed by that person or preclude application of the aggregation rule laid down by Article 18(1) of Regulation N o 1408/71.

Edward Moitinho de Almeida Gulmann