JUDGMENT OF 27. 10. 1971 — CASE 23/71 JANSSEN v MUTUALITÉS CHRÉTIENNES

In Case 23/71 Reference to the Court under Article 177 of the EEC Treaty by the Arbeidsrechtbank (Labour Court) Tongeren for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco (Rapporteur) and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and Procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations submitted by Mr Janssen

(a) Belgian national legislation

(b) Community rules

B — Observations submitted by the Commission of the European Communities

Grounds of judgment

Costs

I —. Facts and Procedure

1. Mr Michel Janssen worked in France as an agricultural wage-earner from 16 October 1967 to 31 December 1969. During that period he was a regular contributor in that country to the Mutualité Sociale Agricole de la Somme. After 1 January 1970 Mr Janssen ceased to work in France and became a helper on his father's farm. With effect from that date he joined the Landsbond der Christelijke Mutualiteiten as a self-employed worker. During that same January his wife was admitted to the Bilzen Hospital for the birth of a child. When Mr Janssen applied to the aforesaid insurance institutions for re-imbursement of the expenses involved, the last mentioned institution rejected his claim on the ground that he had not completed the waiting period laid down under Article 25 of the Royal Decree of 30 July 1964 on sickness insurance of self-employed persons, which was six months. Mr Janssen claimed that, by virtue of Regulations Nos 3 and 4 of the EEC, the rejection was invalid.

2. The judgment making the reference was received at the Court Registry on 10 May 1971.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

A —. Observations submitted by Mr Janssen

(a). Belgian national legislation

(b). Community rules

B —. Observations submitted by the Commission of the European Communities

1. By decision of 30 April 1971, received at the Court Registry on 10 May 1971, the Arbeidsrechtbank Tongeren referred to the Court under Article 177 of the EEC Treaty a question of interpretation concerning the word assimilated used in Regulations Nos 3 and 4 of the EEC Council.

2. The Court is first asked to rule whether the concept of assimilated workers within the meaning of the said Council regulations can apply to helpers whom Belgian legislation on the subject of sickness and invalidity insurance treats as self-employed persons.

3. The scope of Regulation No 3 is set out, as regards the persons to whom it applies, by Article 4, which provides that the provisions of this Regulation shall apply to wage-earners or assimilated workers who are or have been subject to the legislation of one or more of the Member States ….

4. Reference is made to that provision in Article 1 of Regulation No 4, which was adopted to implement Regulation No 3.

5. This provision is based on a wide conception of the persons to whom it applies inasmuch as it subjects to the provisions of the regulation not only wage-earners within the strict sense of the word but in addition all those assimilated to such workers.

6. In this respect, Article 4 follows a general tendency of the social law of Member States to extend the benefits of social security in favour of new categories of persons by reason of identical risks.

7. However, the exact measure of this assimilation can only be determined in terms of the national legislations to which Regulation No 3 refers.

8. Such an assimilation takes place on every occasion on which, as the result of the effect of national legislation, the provisions of a general scheme of social security are extended to a category of persons other than the wage-earners referred to by the said regulation, whatever may be the forms or methods employed by the national legislature.

9. The extension of these provisions must entitle those benefiting from it to a degree of protection against one or more risks comparable to that granted in respect of the risk concerned under the general scheme.

10. The question submitted may, however, also be intended to determine whether a person who is treated as helper under Belgian legislation governing sickness and invalidity insurance can avail himself of completed insurance periods as a wage-earner under the legislation of another Member State, in order to claim advantages, such as being excused a qualifying period, which, under the provisions on the subject of sickness and invalidity insurance for self-employed persons, are added to the periods previously completed under Belgian legislation as a wage-earner.

11. Articles 48 to 51 of the Treaty, which establish freedom of movement for workers gave a meaning to the concept of worker.

12. As expressly stated in Article 4 (1) of the Regulation No 3, the expression wage-earners or assimilated workers, used in the regulation and designed to clarify the concept of workers, covers not only those who, in this capacity, are subject to the legislation of one or more Member States but also those who have been so subject.

13. The object of Articles 48 to 51 would not be achieved but would be missed if the insurance period completed by a worker in accordance with the legislation of one Member State, were, as far as he was concerned, lost if, in taking advantage of the freedom of movement secured for him, he changes his place of work and thus becomes subject to the social security system of another Member State.

14. For the purposes of admission to compulsory insurance, this conclusion is further confirmed by Article 9 (1) of Regulation No 3, which provides that the insurance periods and assimilated periods completed under the legislation of one or more Member States other than that in which the insured is permanently resident shall, in so far as is necessary, be reckoned as insurance periods completed under the legislation of the latter State.

15. It therefore follows that when the legislation of a Member State governing the benefits to be granted to self-employed persons allows insurance periods completed by the insured person under the social security scheme for wage-earners to be taken into account in establishing a right to benefit, the insurance periods completed as a wage-earner under the social security scheme of another Member State must be taken into account in applying that legislation.

16. The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

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 Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 48 to 51; Having regard to Regulation No 3 of the Council on social security for migrant workers; Having regard to Regulation No. 4 of the Council on implementing procedures and supplementary provisions in respect of Regulation No 3 on social security for migrant workers; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20 thereof; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the question submitted to it by the Arbeidsrechtbank Tongeren in accordance with the decision taken by that court on 30 April 1971, hereby rules:

1 The concept of an assimilated worker used in Regulations Nos 3 and 4 of the Council includes a helper, within the meaning of Belgian legislation, considered as a self-employed person in so far as, under that legislation, the benefits of the social security scheme provided for wage-earners as a whole against one or more risks is extended to him, provided that, in respect of the risk concerned, the extension ensures that he receives protection comparable to that provided under the general scheme;

2 When the legislation of a Member State governing the benefis available to self-employed persons allows the insurance periods completed by the insured person under the social security scheme for wage-earners to be taken into account in establishing the right to benefit, the insurance periods completed as a wage-earner under the social security scheme of another Member State must be taken into account in applying that legislation.