JUDGMENT OF 2.12.1964 — CASE 24/64 DINGEMANS v SOCIALE VERZEKERINGSBANK

In Case 24/64 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 9 April 1964, in the action pending before it between

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

gives the following

JUDGMENT

I — Issues of fact and of law

II — Procedure

III — Summary of the observations of the Commission

1. On the questions submitted to the Court

A — First Question

B — Second and Third Questions

(a) Admissibility of these questions

(b) Reply to be given to the questions

C — Fourth Question

2. Opinions on other questions

Grounds of judgment

I — As to the First Question

II — As to the Second Question

III — As to the Third and Fourth Questions

IV — Costs

I —. Issues of fact and of law

1. By letter of 28 May 1964 the acting President of the Centrale Raad van Beroep (Central Court of Appeal) submitted to the Court a copy of his Order of 29 April 1964, in pursuance of which the following questions were brought before the Court of Justice under Article 177 of the Treaty establishing the EEC:

2. The above-mentioned Order is based in particular on the following considerations:

II —. Procedure

III —. Summary of the observations of the Commission

1. On the questions submitted to the Court

A —. First Question

B —. Second and Third Questions

(a). Admissibility of these questions

1. It may be asked whether these questions, as formulated, do not in reality relate to a question of interpretation of national law, in this case an examination of the method of calculation selected by the Netherlands legislature. The notion that such an examination should be reserved to Member States is defensible and Article 24 (2) of the Regulation, Annex F to which determines with regard to each state to what Type its legislation or invalidity insurance belongs, indicates this.

2. The questions are irrelevant to the decision. The Netherlands court is wrong in considering that a reply to the fourth question requires as a preliminary answers to Questions 2 and 3.

(b). Reply to be given to the questions

C —. Fourth Question

(a). This question may lead to confusion, since it requires a reply independent of the question to which Type the legal provisions at issue belong (cf. above, B, (a), 2).

(b). The question should be examined in the light of the judgment in Van der Veen (Case 100/63) in accordance with which Article 28 of the Regulation (and consequently the percentage which it provides for) are only applicable when they concern the acquisition, maintenance or recovery of the right to benefit within the meaning of Article 27.

(c). However, even though a different point of view is adopted, in principle, it would always be open for consideration whether, according to Case 100/63, 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. In this case the application of Article 28 would involve lower benefits: until 27 February 1955, the applicant paid 150 contributions; even if, under the German-Netherlands Treaty the effect of which was continued by Article 27 (1) of the Regulation, the Netherlands authorities had not effected an aggregation in favour of the appellant in order to grant her a pension from 1 July 1953, she would nevertheless have been entitled to an invalidity pension, independently of Regulation No 3, pursuant to the Netherlands legislation. Consequently, still on the basis of Netherlands law alone, the appellant would have been entitled to a payment of benefits in accordance with the IWI and these payments would have been much higher than those which she is at present drawing.

2. Opinions on other questions

(a). The Centrale Raad van Beroep ought not to have adopted implicitly the opinion of the court of first instance, in accordance with which Article 28 (1) (f) and (3) of the Regulation are not applicable, but should have submitted these questions, which are important for this case, to the Court. The Commission leaves it to the Court to decide whether it considers itself competent or indeed bound to raise these questions of its own motion.

(b). With regard to the merits, the Commission sees the position as follows:

I —. As to the First Question

1. It appears from the information supplied by the Centrale Raad van Beroep that the IWI provides for invalidity insurance with invalidity benefits.

2. The application of Regulation No 3 to particular legislation is not excluded by the mere fact that the legislation came into force after the Regulation and may not have been notified to the President of the EEC Council, in accordance with Articles 3 (2) and 54 (1) of the Regulation. In fact, Article 1 (b) of the Regulation provides that when it uses the term legislation, it refers to the laws, regulations, etc., present and future, of each Member State. This provision would become meaningless if it were possible for any Member State to interfere arbitrarily with the field of application of Regulation No 3, by failing to carry out the above-mentioned notification. Besides, under Article 3 (2) of the Regulation, an obligation to notify exists only in the case where the adoption of new legislation necessitates an amendment to Annex B. Such is not the case when the legislation comes under one of the headings set out in Annex B.

II —. As to the Second Question

III —. As to the Third and Fourth Questions

IV —. Costs

On those grounds, 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 the Treaty establishing the European Economic Community, especially Article 177; 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.); Having regard to the amendment to Annex F to Regulation No 3, published in the OJ of 14 February 1964, p. 450; 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 29 April 1964 hereby:

1 Rules that the expression legislation used in Article 1 (b), Article 2 (1) (opening words) and Article 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 any Netherlands legislation making provision for invalidity insurance with invalidity benefits, with the exception of benefits granted in respect of industrial accidents or occupational diseases, even though this legislation came into force after Regulation No 3 and was not notified as provided for under Article 3 of the said Regulation;

2 Declares that the amendment to Annex F to Regulation No 3 published in the Official Journal of 14 February 1964, subsequent to the Interimwet Invaliditeitsrentetrekkers, shows that the Netherlands legislation is of Type B, except for the system of pensions for certain miners;

3 Rules that the decision as to the costs of these proceedings is a matter for the Centrale Raad van Beroep.