JUDGMENT OF 11. 3. 1965—CASE 33/64 BETRIEBSKRANKENKASSE HESEPER TORFWERK v KOSTER

In Case 33/64 Reference to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtbank, Assen (Netherlands), for a preliminary ruling in the action pending before that court between

THE COURT composed of: Ch. L. Hammes, President, A. M. Donner and R. Lecourt, Presidents 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

Issues of fact and of law

I — Questions submitted to the Court

II — Procedure

III — Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Observations of the plaintiff in the main action

A— As to the first question

B — As to the second question

2. Observations of the Government of the French Republic

3. Observations of the Commission

A — As to the first question

B — As to the second question

(a) Preliminary observations

(b) As Jo the first subdivision of the question

(c) As to the second subdivision of the question

Grounds of judgment

I — On the first question

II — On the second question

III — Costs

I —. Questions submitted to the Court

1. Must the first paragraph of Article 52 of Regulation No 3 concerning social security for migrant workers be regarded as applicable even before the entry into force, between the Member States concerned, of the bilateral agreement provided for in the second paragraph of that Article?

2. Must the first paragraph of Article 52 of the said Regulation be regarded as applying also to a case similar to that of Joh. F. de Munnik, who was working in the Federal Republic of Germany for an employer established in the frontier zone of that country, but who lived at Zwartemeer, in the frontier zone of the Netherlands, where he regularly returned once a week, and who was, during his own time and in his own country, a victim of the accident in question which had no connexion with his work and which did not take place whilst he was travelling from his place of work to his home or vice versa?

II —. Procedure

III —. Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

1. Observations of the plaintiff in the main action

A—. As to the first question

B —. As to the second question

2. Observations of the Government of the French Republic

3. Observations of the Commission

A —. As to the first question

(a). As a preliminary matter, the Commission points out:

(b). In favour of the immediate applicability of Article 52, the following arguments may be put forward:

(c). Against immediate applicability, it is possible to argue that:

(d). In conclusion, the Commission is disposed to defend the argument favouring immediate enforceability, for two essential reasons:

B —. As to the second question

(a). Preliminary observations

(b). As Jo the first subdivision of the question

1. Under Article 4 (3) of Regulation No 3 before its amendment, frontier workers were not excluded from the application of the provisions of the said Regulation except in so far as the benefits to which they are entided are governed or to be governed by the special provisions of a social security Convention for such workers. This Article thus gives priority to the said special provisions over the provisions of the Regulation governing the same benefits, whilst all the other provisions of the Regulation are applicable to frontier workers, whether it is a matter of provisions of a general nature or of those relating to rights to benefits which are not governed in another way in a bilateral convention.

2. As to Regulation No 36/63, Article 3 thereof provides:

(c). As to the second subdivision of the question

I —. On the first question

II —. On the second question

(1). It should be considered first whether Article 52 is not inapplicable ratione personnae, particularly since frontier workers are not covered by the said provisions.

(2). It should still be considered whether Article 52 is not inapplicable ratione materiae, for the reason that accidents occurring in the circumstances described by the Arrondissementsrechtbank, Assen, are not industrial accidents.

III —. Costs

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the EEC and of the defendant; 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 (Official Journal of 16 December 1958, pp. 561 et seq.); Having regard to Regulation No 36/63 of the Council of the EEC concerning social security for frontier workers (Official Journal of 20 April 1963, pp. 1314 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 Arrondissementsrechtbank, Assen, by judgment of 25 July 1964, hereby rules:

I The provisions of the first paragraph of Article 52 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, pp. 561 et seq.) are applicable even before a bilateral agreement, as referred to in the second paragraph of that Article, has been concluded between the Member States concerned;

2 These provisions are applicable where a worker who, under the legislation of one Member State, is in receipt of one of the benefits mentioned in Article 2 of Regulation No 3 in respect of an injury sustained in the territory of another Member State, whether or not such injury is connected with his work, is entitled to compensation for that injury from a third party in the latter State's territory.

3 It is for the Arrondissementsrechtbank, Assen, to decide on the costs of the present proceedings.