In Case 61/65
Reference to the Court under Article 177 of the EEC Treaty by the Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf, Heerlen (Netherlands), for a preliminary ruling in the action pending before the court between
MRS G. VAASSEN (NÉE GÖBBELS) (A WIDOW), resident at Bardenberg (Germany),
MANAGEMENT OF THE BEAMBTENFONDS VOOR HET MIJNBEDRIJF, Heerlen (Netherlands),
on the interpretation of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of
THE COURT
composed of: Ch. L. Hammes, President, L. Delvaux and W. Strauß (Rapporteur), Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Lecourt and R. Monaco, Judges,
Advocate-General: J. Gand
Registrar: A. Van Houtte
gives the following
It appears from the decision making the reference to the Court, adopted by the Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf (Arbitration Tribunal of the Fund for non-manual workers employed in the mining industry, hereinafter called
The applicant in the main action, aged 70, is the widow of a Dutchman employed in mining. She is in receipt of a pension from the pension fund of the social security institution known as the
While she was resident in the Netherlands, and because of her entitlement to a pension, the BFM registered the applicant as a member of its sickness fund for pensioners.
On
Subsequently and as a result of other information, the applicant asked for her name to be re-entered on the list of members of the fund. The defendant rejected this request, relying on the former Article 18 (b) of the Rules of the BFM (hereinafter called
The applicant appealed to the Scheidsgerecht against this decision.
Scheidsgerecht and the reasons for its decision to refer the case In its decision dated
The abovementioned decision of the Scheidsgerecht is based chiefly on the following considerations:
By providing that the Scheidsgerecht shall give judgment
In the present case the parties hold different views on the question whether the latter Regulations apply to the applicant's situation. The Court has therefore jurisdiction to give a preliminary ruling on the questions thus raised.
Whilst the Scheidsgerecht cannot be regarded as a court of law under Netherlands law, it is not excluded that it may be regarded as a
The following are the chief provisions governing the procedure of the Scheidsgerecht:
(
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the defendant in the main action, the Government of the Kingdom of the Netherlands, and the Commission of the EEC.
The oral hearing took place on
The Advocate-General delivered his opinion on
The observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
The
It points out first of all that the Scheidsgerecht is not regarded as a court under Dutch law, whilst admitting, however, that this fact is not of itself decisive.
The defendant also takes the view that the decisions of the Scheidsgerecht are not arbitration decisions within the meaning of the Netherlands Code of Civil Procedure, but that they are binding opinions. Such an opinion
It is important to note that under Article 170 of the Constitution, the parties which can come before the Scheidsgerecht retain the right to submit the disputes concerned to the civil court. Therefore
Contrary to the opinion of the Scheidsgerecht, the defendant in the main action thinks that, considering the wording of Article 89 of the RBFM, this tribunal has no jurisdiction to apply Community law. It is also argued on the basis of the considerations set out above that the parties may, where appropriate, submit this question to the civil court.
These rules were drawn up by the Board of Management of the BFM, and then approved by the general meeting and by the Minister responsible. It starts with the idea that all persons employed in the mining industry are compulsorily affiliated to the BFM's sickness fund. This obligation arises under Article 33 of a regulation of Although affiliation to the sickness fund in question is compulsory for non-manual employees, this is not, however, the case for pensioners. No argument can be based on the fact that the rules relating to expenses incurred through sickness by
Another argument which lends weight to this reasoning is to be found in the fact that a representative of the mineworkers took part in the drafting of Regulation No 3 but no representative of the non-manual workers-did so.
The
This Article is only concerned with
Affiliation to the sickness fund for pensioners of the BFM only arises through an agreement between the management of the BFM and the person insured; it is thus optional and takes place under private law.
This affiliation is independent of the right to a pension paid by the BFM. For even a retired non-manual employee of the mines not entitled to a pension can insure himself with the said fund. Yet Article 22 (2) of Regulation No 3 clearly states that the right to benefits in kind is tied to the right to a pension.
Regulation No 3 governs the social security of migrant workers and members of their family. These categories do not include a deceased worker's widow who has never been a worker herself and who, after having obtained the right to a widow's pension, transfers her permanent residence to another Member State without the intention of working there.
If it were otherwise such a person might take up residence in the Member State where she received the best treatment.
Finally and generally speaking, it is never possible, at least in the Netherlands, to take out private insurance against sickness expenses such that the benefits do not cease to be payable when the person concerned takes up residence abroad.
The Government of the Kingdom of the Netherlands only defines its position as regards the question whether the Scheidsgerecht has the capacity to make a reference to the Court.
Whilst of the opinion that the present case does not require the Court to issue a ruling on the capacity in this respect of arbitration tribunals in general, the said government takes the view that the Scheidsgerecht is a court or tribunal within the meaning of Article 177. Its thinking is based mainly on the following considerations:
In accordance with the provisions in force in the Netherlands, the RBFM — by which the Scheidsgerecht was brought into being — had to be approved by the Minister of Social Affairs and Public Health and also by the Minister for Economic Affairs. The latter approval was required under Article 39 of the Invaliditeitswet (Invalidity Law). The compulsory insurance provided for by the said Article need not apply to persons whose sickness and old age pensions respectively are governed by another scheme falling under public law. This condition is fulfilled when the competent authorities declare that the other scheme, the purpose of which must be to replace the general scheme, satisfies the legal requirements and offers sufficient guarantees for the payment of pensions.
It is important to note that the persons to which the RBFM apply must be covered by the BFM.
Because of all the above it is considered that the RBFM constitute a scheme falling under public law. Therefore
It is true that the Scheidsgerecht is not a board of arbitrators within the meaning of Article 620 of the Netherlands Code of Civil Procedure. It is also true that therefore the Scheidsgerecht's decisions cannot include an operative clause requiring their enforcement, and that in order to secure their enforcement the person concerned must go through the normal procedure before a civil court. But the latter does no more than exercise a
Finally the Scheidsgerecht is bound by the law as laid down. Thus it may not take decisions simply on the basis of what it thinks right.
The Commission of the EEC is of the opinion that this right must be accepted because the Scheidsgerecht
The Scheidsgerecht is independent of the BFM, its judicial characteristics being clearly separated from the administrative functions of the latter. It is a body of a permanent nature, for the rules under which it was created could not be made nor can they be modified without the approval of the Minister responsible who, moreover, appoints the members of the Scheidsgerecht and lays down its rules of procedure.
The rules of procedure applied by the Scheidsgerecht
The Scheidsgerecht takes its decisions according to rules of law and not just according to broad rules of fair play.
As will be explained below (B), the RBFM replaces the general legislation and must therefore be considered as legislation on social security within the meaning of Regulations Nos 3 and 4.
The Scheidsgerecht has been set up as a body of first and last instance for deciding disputes concerning the application of this special legislation and in fact it constitutes the only judge of these matters. Accordingly it thus replaces, in fact if not in law, the bodies having general jurisdiction which normally hear disputes in this area. If the request of the Scheidsgerecht were not admissible, then the Court would be practically unable to make sure that the Community legislation on social security is correctly interpreted when it is applied by the BFM to the non-manual employees in the mines in the Netherlands. It would be unable to do so not only as regards the sickness fund, but also as regards the other insurance scheme managed by the BFM, namely the pension fund.
Taking into account all the matters set out above, the nature of the Scheidsgerecht's decisions is not decisive.
According to the Commission this question asks the Court to examine first whether the concept of'enforceable provisions' found in Article 1 (b) of Regulation No 3
These considerations receive further support from the fact that the Government of the Netherlands has considered the RBFM to be Netherlands legislation within the meaning of the Convention on Social Security between the Netherlands and the Federal Republic of Germany, as appears from certain supplementary texts to this Convention. A further consideration is that if one accepted the argument that the RBFM do not constitute
The Commission points out that so soon as it is accepted that the rules under discussion are legislation within the meaning of Regulation No 3, the question of how they are classified under Annex B becomes a mere consequential matter. For since this Annex is only declaratory (cf. the Judgment given by the Court in Case 24/64,
However, the inclusion in the said Annex of the following under the heading
Admittedly the corresponding Dutch text does not say
Moreover, as appears from the file forwarded by the Scheidsgerecht, the Netherlands Minister of Social Affairs and Public Health is of the opinion that the RBFM is covered by the abovementioned subparagraph (i).
Finally, the Commission goes into a great deal of detail with a view to showing that Regulation No 3 is intended to cover the RBFM because of the combined effects of the provisions of this regulation together with Annex D thereto on the one hand, and of a convention between Germany and the Netherlands on the other.
In short, the Commission is of the opinion that the reply to the first question should be in the affirmative.
The Commission brings to the attention of the Court the fact that the argument is not about the possible attitude of the German body required both on principle and under Article 22 (2) of Regulation No 3 to furnish sickness benefits to the applicant.
According to the Commission it follows from the spirit of the EEC Treaty, from Regulation No 3 itself, and from previous-cases decided by the Court that the question thus put must receive an affirmative answer.
However, such a solution should be rejected, for the following reasons in particular:
Whenever there is an intention in Regulation No 3 that the right to benefit is to cease in the event of a change of permanent residence to a foreign country, the Regulation says so expressly, as can be seen from Article 10 (2).
The defendant in the main action asserts that the Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf, hereinafter referred to as
The Scheidsgerecht is properly constituted under Netherlands law, and is provided for by the
According to the terms of the Netherlands Invalidity Law, the compulsory insurance provided for by that Law does not apply to persons whose invalidity or old-age pension is provided for under the terms of another scheme which is intended to replace the general scheme. Such substitution will occur when the competent authorities declare that the substituted scheme satisfies the legal requirements and offers sufficient guarantees for the provision of pensions.
Analogous provisions exist for other branches of social security.
It follows that the Rules and any subsequent amendments of them must be approved not only by the Netherlands Minister responsible for the mining industry, but also by the Minister for Social Affairs and Public Health.
It is the duty of the Minister responsible for the mining industry to appoint the members of the Scheidsgerecht, to designate its chairman and to lay down its rules of procedure.
The Scheidsgerecht is a permanent body charged with the settlement of the disputes defined in general terms in Article 89 of the RBFM, and it is bound by rules of adversary procedure similar to those used by the ordinary courts of law.
Finally, the persons referred to in the RBFM are compulsorily members of the Beambtenfonds by virtue of a regulation laid down by the Mijnindustrieraad (Council of the Mining Industry), a body established under public law.
They are bound to take any disputes between themselves and their insurer to the Scheidsgerecht as the proper judicial body.
The Scheidsgerecht is bound to apply rules of law.
In this case the question whether rules such as the RBFM are covered by Regulation No 3 of the Council of the EEC concerns the interpretation of this regulation, and it must be examined in the context of the first question put by the Scheidsgerecht.
It follows from the above that the Scheidsgerecht should be considered a court or tribunal within the meaning of Article 177.
Therefore the request for interpretation is admissible.
The Scheidsgerecht requests the Court to state whether the provisions of Chapter II of the RBFM concerning the sickness fund managed by the BFM constitutes
According to Article 177 of the EEC Treaty, the Court is only empowered to give judgment upon the interpretation or validity of the Treaty and of acts of the institutions of the Community, but has no power to apply these to a specific case.
The Court must accordingly restrict itself to extracting from the question asked by the Scheidsgerecht, in the light of the facts given by that tribunal, only those matters which relate to the interpretation of the Treaty and of Regulation No 3.
According to Article 1 (b) of Regulation No 3,
The expression
According to Article 1 (e) of Regulation No 3,
The juxtaposition of the terms
The concept of
It is apparent that there is in Regulation No 3 a manifest concern not to exclude from the benefit of its provisions schemes managed otherwise than by the State, and which, at least in several Member States, cover a large proportion of the social security arrangements.
However, the defendant in the main action says that these arguments cannot be correct to the extent that if the rules at issue had not been made, the persons concerned would not be compulsorily insured by virtue of the general social security scheme.
To this extent, the said provisions cannot be considered as being in substitution for the general scheme.
The defendant also argues that the arguments set out above do not apply to a worker's survivors, who are affiliated merely on an optional basis to the body to which the said worker was formerly compulsorily affiliated.
The objection that Mr Vaassen would have been exempt from the general social security scheme is not relevant, since it is clear that the question which led the Scheidsgerecht to refer the case to the Court is whether the rules at issue are, or are not, part of a special scheme within the meaning of Article 2(2) of Regulation No 3.
There clearly is such a special scheme when a specific group of workers is compulsorily made subject to a special type of insurance by virtue of public law.
Moreover the defendant in the main action appears to have grasped the essence of the matter when it states in its observations first that all non-manual employees in Netherlands mines are compulsorily insured by virtue of Article 33 of the Regulation of the Mijnindustrieraad of
However, should a reference to the Court be made under Article 177 of the Treaty, as has occurred in this case, it is then for the national court to examine whether the conditions required for the existence of a special scheme are in fact met, so that the enforceable provisions comprised in the special scheme fall within the term
Once the existence of a special scheme has been established, Regulations Nos 3 and 4 apply to that scheme in its entirety, including any provisions which it may contain concerning the voluntary and optional affiliation of former insured persons and their survivors.
The defendant in the main action thinks that the reply should be in the negative.
It states that the Dutch text of the above provision uses, as equivalent to the word
Even supposing that this interpretation of the term
The heading
as defined above, does not fall within subparagraph (i) it must fall within subparagraph (a), which applies without distinction to all
The heading
In its second question, submitted in the event of the first question's being answered in the affirmative, the Scheidsgerecht requests the Court to say whether a worker's survivor
even if he permanently resides in the territory of a Member State other than that of the sickness insurance institution in question;
and even if the legislation applied by that institution only grants the said survivor the right to be admitted
Article 22 (2) and (3) of Regulation No 3 govern the method of granting sickness benefits to
These provisions certainly cover the case where sickness insurance necessarily follows from the right to a pension, that is to say, when it constitutes, in a sense, a necessary condition of the pension scheme.
The said provisions presuppose logically that this affiliation to a sickness insurance scheme cannot be terminated because the person concerned transfers his permanent residence to a country other than that or those of the institutions liable for the payment of the benefits in question.
Furthermore the above supposition is confirmed by Article 10 (1) of Regulation No 3, according to which
On the other hand Article 22 does not expressly mention the case in which the affiliation of the beneficiary of the pension to a sickness insurance scheme is only provided for on an optional basis.
It is necessary, therefore, to examine whether, in spite of the silence of this Article, it nevertheless also applies in such a case.
According to the terms of Article 4 (2) of Regulation No 3 its provisions shall apply
The general terms in which this provision is couched show that the application of the Regulation is not limited to workers or their survivors who have had employment in several Member States or who are, or have been, employed in one State, whilst residing or having resided in another.
The Regulation thus applies even when the change of residence to another Member State has been effected not by the worker himself but by his survivor.
This interpretation conforms with the spirit of Articles 48 to 51 of the Treaty as well as with that of Regulation No 3, which is, in addition to protecting the migrant worker
Furthermore it follows from Article 9 (1) of Regulation No 3 that this Regulation applies without distinction
And from Article 10 (2) of this Regulation, read in conjunction with Annex E thereto, it follows that in every case where the Regulation intends existing territorial provisions in national legal systems to continue in force, it says so expressly.
Consequently, even when affiliation to a sickness insurance scheme for a worker or his survivor who is entitled to a pension is merely optional, Regulation No 3 forbids a national institution to terminate this affiliation because the person so entitled changes his residence to a country other than that in which the institution is situated.
Chapter 1 of Head III of Regulation No 3, entitled
It is nonetheless clear that the term
For it is logical for such an institution to make such payments in the cases expressly referred to in Article 19 (5) of Regulation No 3 as
A further point is that the provisions of the said Chapter I of Head III draw no distinction between making the said payments directly to the person concerned and paying them to third persons.
Finally, Article 18 of the Regulation allows of the interpretation that
It follows from all the above factors that Article 22 applies equally when benefits, such as those referred to by the Scheidsgerecht, are granted in the form of reimbursement of expenses incurred.
The Costs incurred by the Commission of the EEC, which submitted observations to the Court, are not recoverable, and as these proceedings are,
so far as the parties to the main action are concerned, a step in the action pending before the Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf, the decision on costs is a matter for that tribunal.
On those grounds,
THE COURT
in answer to the questions referred to it for a preliminary ruling by the Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf by Order of that tribunal dated
hereby rules:
and declares:
Hammes
Delvaux
Strauß
Donner
Trabucchi
Lecourt
Monaco
Delivered in open court in Luxembourg on
A. Van Houtte
Registrar
Ch. L. Hammes
President