JUDGMENT OF 9.6.1964 — CASE 92/63 NONNENMACHER v SOCIALE VERZEKERINGSBANK

In Case 92/63 Reference to the Court under Article 177 of the EEC Treaty by the Acting President of the Centrale Raad van Beroep, Utrecht, 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

I — Issues of fact and of law

II — Procedure

III — Legal arguments of the parties to the proceedings

IV — Observations of the Commission of the EEC

Grounds of judgment

I —. Issues of fact and of law

1. By an order of 16 October 1963 the Netherlands court decided that the case before it raised a question envisaged by Article 177 of the EEC Treaty, making necessary a preliminary ruling of the Court of Justice of the European Communities, and that for this purpose the file of the case should be sent to the acting President of the Netherlands court.

2. By a letter of the same date the acting President in carrying out this order asked the Court of Justice to give a preliminary ruling on the following question:

3. The acting President pointed out in particular:

4. In her notice of appeal as well as in a further pleading of 5 June 1961, the appellant in the main action also provides the following information:

II —. Procedure

III —. Legal arguments of the parties to the proceedings

1. In her notice of appeal and in her further pleading the appellant in the main action makes the following observations :

2. The arguments of the respondent in the main action (and those of the Raad van Beroep, Amsterdam, which in essence shares the point of view of the former) may be summarized as follows:

IV —. Observations of the Commission of the EEC

(a). First, it discusses the content of the AWW and points out in particular that this Law does not require for its application the exercise of any economic activity whatever, but that it applies equally and in a general manner to the whole population resident in the Netherlands. The Royal Decree of 10 July 1959 excludes the application of the AWW where the person concerned is employed in another country and is insured in accordance with the law of such country against premature death. According to Netherlands law this expression must be understood as meaning that the only important factor is whether the person concerned is employed in another country and is insured in accordance with the law of such country against premature death. According to Netherlands law this expression must be understood as meaning that the only important factor is whether the person concerned has been insured in the State where he was employed, but not if he in fact receives benefit there.

(b). Article 12 is a rule concerning the conflict of laws such as must exist in a series of provisions which coordinates the social insurance laws of several countries. It must be examined in the light of the development which has become apparent since the last war in the various international conventions concerning social security. The rules governing conflict of laws in these conventions have a double purpose: first, to avoid the payment of double contributions by employers and employees; secondly, to ensure that the rules of one of the States is applicable in every case when those of the other State are not. The exclusive application of the legal system to which reference is made each time serves the first purpose; its compulsory application serves the second. In construing corresponding provisions it is necessary to distinguish between the two objectives. Reference to a legal system which is applicable exclusively is necessary only in so far as the different legal systems which may be in question provide for compulsory contributions by those insured or by employers, but not in other cases where, for example, one of the two laws makes provision only for voluntary insurance, or compulsory insurance without compulsory contribution.

(c). These principles are applicable also in respect of the construction of Article 12, which is based to a great extent on similar provisions in previous social security conventions.

1. The question asked by the said court first requests the Court to say whether Article 12 of Regulation No 3 must … be construed to mean that the persons to whom it refers are subject only to the legislation of the Member State in whose territory they are employed.

2. The Centrale Raad asks the Court in the second part of its question to say whether, to the extent that Article 12 excludes the application of the legislation of other States, this rule is subject to an exception when in fact the person insured or his dependants cannot assert any right on the basis of the legislation of the State referred to in the said Article.

3. The costs incurred by the Commission of the EEC which has submitted its observations to the Court 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 Commission of the European Economic Community; Upon hearing the opinion of the Advocate-General; Having regard to Articles 48 to 51 and to Article 177 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; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), and particularly Article 12; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the question referred to it for a preliminary ruling by the Centrale Raad van Beroep, forwarded by a letter of 16 October 1963 from the acting President of that Court, hereby rules:

1 Article 12 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.) does not prohibit Member States other than those in the territory of which wage-earners or assimilated workers are employed from applying their social security legislation to such persons.

2 It is otherwise only if a Member State, other than that in the territory of which the worker is employed, requires him to contribute to the financing of an institution which would not accord him supplementary protection by way of social security in respect of the same risk and of the same period.

3 The decision on costs is a matter for the Centrale Raad van Beroep.