JUDGMENT OF 1. 12. 1965 — CASE 33/65 DEKKER v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

In Case 33/65

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Arguments and observations of the Commission of the EEC

Grounds of judgment

I — The jurisdiction of the Court

II — The substance of the case

III — Costs

I —. Facts and procedure

1. By letter dated 20 May 1965 the Landessozialgericht, Berlin, in accordance with title decision of its IXth Senate of 28 April 1965, requested the Court of Justice to give a ruling on the following question:

2. The decision concerned contains the following summary of the facts on which it is based:

3. Of the parties referred to in Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, only the EEC Commission submitted written observations.

II —. Arguments and observations of the Commission of the EEC

1. Article 22 of Regulation No 3 forms part of the Chapter concerning insurance for Sickness, Maternity (Article 16 to 23). The coordination of national sickness insurance systems arranged by this Chapter is based on the distinction between cash benefits (payments to compensate for the loss of wages) and benefits in kind which cover all types of care, including the administration of medicine, to which the person insured in respect of sickness or maternity is entitled. This distinction is necessary to delimit the respective roles of the institution to which the insured person is affiliated and the institutions in whatever other Member State the insured person receives treatment, according to the circumstances. Under these provisions, cash benefits are always paid by the first institution and in accordance with the conditions laid down by the legislation applying to it, whilst benefits in kind are issued by the institution of the country in which the insured person is to receive treatment, in accordance With the provisions laid down by the legislation of that country. In addition, these Articles lay down the conditions under which an institution is required to reimburse another institution for the amounts disbursed by the latter.

2. It follows mat by benefits in Kind there is meant only the treatment which is actually given to an insured person when the risk against which he is insured (particularly sickness) materializes. On the other hand, contributions such as that which is the subject of the present case are not included in benefits in kind; these contributions are intended only to constitute and maintain insurance against the risk of sickness since they are paid independently of the materialization of that risk.

I —. The jurisdiction of the Court

II —. The substance of the case

III —. Costs

On those grounds, Upon reading the pleadings; Upon reading the report of the Judge-Rapporteur; Upon hearing the oral 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 (Official Journal of 16 December 1958, p. 561 et seq.), especially Articles 2, 19 and 22; 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 by the Landessozialgericht, Berlin, by an order of that court of 28 April 1965, hereby rules:

I Supplementary pension payments which are intended as a contribution to the financing of the beneficiary's sickness insurance do not fall within the meaning of the expression benefits in kind in Article 22 of Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 5 61 et seq.);

2 The decision on costs is a matter for the Landessozialgericht, Berlin.