JUDGMENT OF 15.7.1964 — CASE 100/63 KALSBEEK v SOCIALE VERZEKERINGSBANK

In Case 100/63 Reference to the Court under Article 177 of the EEC Treaty by the acting president of the Centrale Raad van Beroep (Central Court of Appeal), being the Netherlands court of last instance in social security matters, in pursuance of an order of that court of 30 October 1963 in the action pending before it between

THE COURT composed of: A. M. Dormer, 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 Houtt

gives the following

JUDGMENT Issues of fact and of law

I — In the present cases, the parties are the social insurance authorities and certain widows of insured persons. The acting president of the Netherlands court has supplied in particular the following information:

II — Procedure

III — Summary of the observations submitted in accordance with the second paragraph of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The answer to this question is in the affirmative.

Second question:

Third Question:

Fourth Question:

Grounds of judgment

I — The first question

II — The second question

III — The third question

IV — The fourth question

V — Costs

I —. In the present cases, the parties are the social insurance authorities and certain widows of insured persons. The acting president of the Netherlands court has supplied in particular the following information:

1. Are Articles 1 (b), 2 (1) (d) and 3 of Regulation No 3 to be interpreted as meaning that the legislation referred to therein also includes the Algemene Weduwen- en Wezenwet, although this Law, adopted after the entry into force of the Regulation, was not the subject of a notification in accordance with Article 3 (2) ?

2. If the answer to Question 1 is in the affirmative:

3. If the answer to Question 2 is in the affirmative:

4. Does Article 28 (1) (g) of the Regulation, which refers to benefits already paid, relate solely to benefits already paid on 1 January 1959, the date of the entry into force of the Regulation?

II —. Procedure

1. The reference from the Netherlands court was received at the Court of Justice on 12 November 1963.

2. 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 following:

3. The hearing took place on 14 May 1964.

4. At the hearing of 4 June 1964 the Advocate-General delivered his opinion.

III —. Summary of the observations submitted in accordance with the second paragraph of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Articles 27 and 28 contain in effect two rules which must be distinguished, namely:

2. It is of course true that the wording of Article 28 was drafted having in mind the existence of national insurance pension schemes based on a system in which the amount of the pension depends on the length of the insurance period. Thus its language is not entirely suited to a scheme such as that prescribed by the Algemene Weduwen- en Wezenwet which is based on insurance against risks and consists of a scheme in which the amount of pension benefit does not depend on the period of affiliation or on the payment of contributions. Nevertheless the rule for sharing the financial burden remains justifiable in a case where one of the types of insurance is that against risks, because it would not be fair for a country which has introduced such an insurance scheme to have to bear the whole financial burden of the pension.

3. Moreover it follows from Article 7 of Regulation No 130/63 that the insurance authorities must unquestionably grant a pension corresponding in amount to the insurance period of the person concerned either in accordance with the Invaliditeitswet (until 1 October 1959) or with the Algemene Weduwen- en Wezenwet (from 1 October 1959). In reality the assimilation to completed insurance periods under the Algemene Weduwen- en Wezenwet is only meaningful if those periods during which the insured person came under the Algemene Weduwen- en Wezenwet are themselves taken into account in order to calculate the amount of the benefit payable by virtue of the Algemene Weduwen- en Wezenwet.

I —. The first question

(1). It follows from the information supplied by the Centrale Raad van Beroep that the AWW provides for insurance against premature death with benefits to survivors. It is therefore necessary to consider whether the Netherlands legislation having such an objective comes within the framework of the above mentioned provisions.

(2). The application of Regulation No 3 to any legislation is not precluded simply because the latter came into force after the said Regulation and was not notified under Article 3 (2) of the Regulation. In fact, Article 1 (b) of the Regulation provides that when the Regulation uses the term legislation it refers to the laws, regulations etc. present and future of each Member State. This provision would be deprived of its meaning if it were permissible for any Member State, by refraining from making the abovementioned notification, to decide for itself the extent to which Regulation No 3 should apply. Moreover, under Article 3 (2) of the Regulation, the obligation to provide such notification only arises in cases in which the adoption of new legislation renders an amendment to Annex B necessary. Such is not the case when the new legislation comes under one of the headings used in the said Annex.

II —. The second question

(1). It follows from the wording of Article 28 (1) that the conditions for the application of this Article are subject to those of Article 27.

(2). The Centrale Raad van Beroep has next raised the question whether Article 28 is applicable to legislation which does not make the amount of the pension dependent on the duration of the insurance.

(3). Having regard to all the above, Article 28 (1) (b) is applicable only in so far as its application secures for the persons concerned benefits which amount to at least as much as those which they would receive by virtue of the national legislation applicable to them, considered independently of Regulation No 3.

III —. The third question

IV —. The fourth question

V —. Costs

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to Articles 48 to 51 and 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 (OJ of the European Communities of 16 December 1958, pp. 561 et seq.) and Regulation No 130 of the Council (OJ of 28 December 1963, pp. 2996 et seq.); Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep by decision of 30 October 1963, hereby rules:

1 The expression legislation used in Articles 1 (b), 2 (1) (d) and 3 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (OJ of the European Communities of 16 December 1958 pp. 561 et seq.) also includes national legislation making provision for insurance against premature death with benefits to survivors, even if such legislation came into force after Regulation No 3, and even if notice thereof was not given.

2 (a) Article 28 of the said Regulation only applies in matters relating to the acquisition, maintenance or recovery of the right to benefit, as referred to in Article 27; (b) These provisions apply to legislation which does not make the amount of the benefit dependent upon the length of the insurance period; (c) These provisions apply only in so far as the Regulations make it possible to secure for the persons concerned benefits at least equal in amount to those which they would receive in each country by virtue of the national legislation applicable to them, considered independently of Regulations Nos 3 and 130 of the Council of the EEC.

(a) Article 28 of the said Regulation only applies in matters relating to the acquisition, maintenance or recovery of the right to benefit, as referred to in Article 27;

(b) These provisions apply to legislation which does not make the amount of the benefit dependent upon the length of the insurance period;

(c) These provisions apply only in so far as the Regulations make it possible to secure for the persons concerned benefits at least equal in amount to those which they would receive in each country by virtue of the national legislation applicable to them, considered independently of Regulations Nos 3 and 130 of the Council of the EEC.

3 Where, within the framework of Articles 27 and 28 of Regulation No 3, a widow's pension is granted by virtue of the Netherlands legislation concerning general insurance in favour of widows and orphans, the insurance periods completed by virtue of the Netherlands Law on invalidity must be assimilated to the periods completed under the said legislation.

4 The expression benefits already paid appearing in Article 28 (1) (g) of Regulation No. 3 includes all benefits paid in accordance with subparagraphs (e) and (f) of the said Article 28 (1), whatever the date of payment.

5 The decision as to the costs of these proceedings is a matter for the Centrale Raad van Beroep.