JUDGMENT OF 19.3.1964 — CASE 75/63 HOEKSTRA v BEDRIJFSVERENIGING DETAILHANDEL

In Case 75/63 Reference to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep, the Netherlands court of last instance in social security matters, for a preliminary ruling in the action pending before that court between

THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi, R. Lecourt and W. Strauß (Rapporteur), Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Background and subjectmatter of the dispute

II — Procedure

III — Observations of the parties to the proceedings

1. The admissibility of the reference

2. Questions put by the Netherlands court

Grounds of judgment

I —. Background and subjectmatter of the dispute

II —. Procedure

III —. Observations of the parties to the proceedings

1. The admissibility of the reference

2. Questions put by the Netherlands court

1. Regulations of the EEC have as their object the creation of a unified law in the Member States; it follows from this that the concepts which they contain are in principle invested with a Community character. This does not however prevent Community law from employing in exceptional circumstances concepts borrowed from national law, especially when it is concerned with adapting the application of national legislation to the rules of Community law.

2. Rations personae, the relevant provisions of the Treaty (Articles 48 to 51) relate to wage-earners.

3. However the Treaty does not authorize the Community to create a unified social law for all the Member States. Accordingly, it should not be assumed that there is a specifically Community definition of the legal concept of wage-earner.

(a). National law gives no reply to the question what assimilation is referred to by Regulation No 3 since national law does not recognize the legal status of the qualitative equality of other persons with wage-earners. The answer to the question must accordingly be found by taking account of the objectives of the Regulation. According to the Regulation, there shall be considered as assimilated to wage-earners those persons who, in the field of social security, are insured against one or more risks to life within the framework of the national systems organized for the benefit of wage-earners, no matter what legal form or terminology is used by national legislation to ensure that extension, or whether the affiliation is obligatory or voluntary. In particular … there shall be considered as assimilated within the meaning of Regulation No 3 those persons who have ceased to be wage-earners but who, by reason of their former status as wage-earners, may remain voluntarily insured against certain risks (in particular sickness and invalidity insurance) within the framework of the rules in force for wage-earners.

(b). Moreover, the reply to the question whether, in a particular case, a person is assimilated in this sense, depends exclusively on the appropriate national law. Regulation No 3 does not specify to the Member States what categories of self-employed persons must be provided with social insurance, voluntary or obligatory.

1. The question put by that court requests the Court of Justice to rule, in the first place, whether the concept of a wage-earner or assimilated worker as used in Article 19 (1) of Regulation No 3 is defined by the legislation of each Member State or by Community law as having a supranational meaning.

2. The Centrale Raad requests the Court, in the second part of its question, and in the event that the expression in dispute should be given a Community meaning, to give a ruling on what that meaning is, because a definition of the term is necessary when deciding whether the aforementioned Article 19(1) prevents the non-payment of sickness expenses to persons in a situation similar to that in this case.

3. The German Goverment raised the question whether, in any event, the German-Dutch Convention on social security of 29 March 1951 (Tractatenblad van het Koninkrijk der Nederlanden, 1951, No 57) should require actions such as that brought by the appellant to be upheld.

4. The costs incurred by the Commission of the EEC and the German Government are not recoverable.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the appellant in the main action, of the German Government and of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to Articles 48 to 51, 177 and 189 of the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Articles 20 and 35; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69 (1); Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of the European Communities of 16 December 1958, pp. 561 et seq.), especially Article 19 (1); THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep, by letter of the acting President of that court of 12 July 1963, hereby rules:

1 The concept of wage-earner or assimilated worker employed in Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of the European Communities of 16 December 1958, pp. 561 et seq.) has, like the term workers in Articles 48 to 51, a Community meaning.

2 (a) This concept covers those persons who, originally compulsorily affiliated to a social security system as workers, have subsequently, as such and in consideration of a possible resumption of their activity as workers, been admitted as beneficiaries of a voluntary insurance scheme under national law governed by principles analogous to those of the compulsory insurance: (b) It is for the national court to appraise in each case whether this benefit has been granted to the persons concerned in the circumstance set out under (a).

(a) This concept covers those persons who, originally compulsorily affiliated to a social security system as workers, have subsequently, as such and in consideration of a possible resumption of their activity as workers, been admitted as beneficiaries of a voluntary insurance scheme under national law governed by principles analogous to those of the compulsory insurance:

(b) It is for the national court to appraise in each case whether this benefit has been granted to the persons concerned in the circumstance set out under (a).

3 (a) Wage-earners or assimilated workers in the situation envisaged by Article 19 (1) of Regulation No 3 benefit from the rights conferred by that provision, whatever may be the reason for their temporary residence abroad. (b) Article 19 (1) precludes any rule of national law from subjecting the grant of the benefits in question, in the case of such temporary residence, to conditions more onerous than those which would be applied if the person concerned had fallen ill while in the territory of the State to which the insurer belongs.

(a) Wage-earners or assimilated workers in the situation envisaged by Article 19 (1) of Regulation No 3 benefit from the rights conferred by that provision, whatever may be the reason for their temporary residence abroad.

(b) Article 19 (1) precludes any rule of national law from subjecting the grant of the benefits in question, in the case of such temporary residence, to conditions more onerous than those which would be applied if the person concerned had fallen ill while in the territory of the State to which the insurer belongs.

4 It is for the national court to decide the question of the costs of the present case.

1 Translator's Note: The word equally does not in fact occur in the text of the Regulation.