JUDGMENT OF 16. 11. 1972 — CASE 16/72 ORTSKRANKENKASSE HAMBURG v LANDESVERSICHERUNGSANSTALT SCHLESWIG-HOLSTEIN
In Case 16/72 Reference to the Court under Article 177 of the EEC Treaty by the IVth Senate of the Bundessozialgericht (Social Security Court) Kassel for a preliminary ruling in the action pending before that court between
THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi (Rapporteur), J. Mertens de Wilmars and H. Kutscher, Judges, Advocate-General: H. Mayras 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 Statute of the Court of Justice
1. Observations of the Landesversichungsanstalt Schleswig-Holstein
2. Observations of the Bundesverband der Ortskrankenkassen
3. Observations of the Commission
A — The first question
(b) The question whether the benefits at issue are in the nature of social security payments
(c) The question whether Regulation No 3 contains a rule enabling the aggregation, in the main action, of the insurance periods completed in the different Member States
(d) Aggregation on the basis of Articles 26 and 27 of Regulation No 3
(e) Aggregation on the basis of Article 16 et seq. of Regulation No 3
B — The second question
4. Observations submitted by the Government of the Italian Republic
Grounds of judgment
Costs
I —. Facts and procedure
(a). Are Articles 26 and 27 of Regulation No 3 of the Council of the European Economic Community concerning social security for migrant workers (aggregation of insurance periods) applicable by analogy to a legal provision which, according to the law in force in the Federal Republic of Germany, does not concern social security benefits but an obligation which, for the purposes of the prevention of disease, is imposed under certain conditions on pension insurance organizations, where this provision provides for the payment of the relevant benefits — which are not pensions and are not divided pro rata temporis —without regard to the materialization or threat of the risk of invalidity and without taking into account, in making this calculation, the length of the period of affiliation, but makes the power of the pension insurance organization to pay such benefits dependent upon the existence of a certain period of affiliation to the pension insurance scheme?
(b). If an affirmative answer is given to Question (a):
II —. Observations submitted under Article 20 of the Statute of the Court of Justice
1. Observations of the Landesversichungsanstalt Schleswig-Holstein
2. Observations of the Bundesverband der Ortskrankenkassen
3. Observations of the Commission
A —. The first question
(a). The Commission observes that before the entry into force of the law of 1959 providing for social assistance in cases of tuberculosis, social insurance organizations acted—as they still do today in order to avoid cases of invalidity (Articles 1236 et seq. of the RVO, as amended)—on the basis of Article 1252 of the RVO to pay to tuberculosis sufferers benefits which were provided for not by public assistance, but by a law governing social insurance. The benefits referred to in Articles 48 to 66 of the BSHG, which have replaced the abovementioned law of 1959, are based on the principle of the laternative nature of the social assistance (cf. Article 2 of the BSHG), that is, that in theory the assistance is only provided when the person concerned cannot receive it from other sources, in particular, from institutions paying other social benefits, and his financial circumstances must also be taken into account. Although, under Article 59 of this law, the social assistance institution is always bound to pay the benefit, the organization which actually bears this obligation must reimburse the institution with the expenses which it was forced to incur. This confirms the alternative nature of the measures of assistance in cases of tuberculosis provided for by this law. Quite independently of the benefits provided for by the BSHG, the provisions of Article 1244a of the RVO adopted in 1959 award not only to insured persons and persons receiving pensions, but also to the spounse and children of such persons, rights to medical treatment, to aid to integration into working life and to social assistance in the case of contagious tuberculosis, provided that the requisite insurance periods have been completed. These rights are not subject to any condition that they must be alternative in nature and may be enforced in legal proceedings. The right to medical treatment and to a temporary allowance exists even where there is no reason to fear that the employment of the person concerned will be endangered or where there is no chance of maintaining, considerably improving or re-establishing such employment as a result of the measures provided for. It is on the basis of this last feature that the Bundessozialgericht believes that the provisions of Articles 26 and 27 of Regulation No 3 may be inapplicable.
(b). The question whether the benefits at issue are in the nature of social security payments
(c). The question whether Regulation No 3 contains a rule enabling the aggregation, in the main action, of the insurance periods completed in the different Member States
(d). Aggregation on the basis of Articles 26 and 27 of Regulation No 3
(e). Aggregation on the basis of Article 16 et seq. of Regulation No 3
B —. The second question
4. Observations submitted by the Government of the Italian Republic
1. By order of 1 March 1972, received at the Court Registry on 24 April 1972, the Bundessozialgericht referred to the Court under Article 177 of the EEC Treaty a question concerning the interpretation of certain provisions of EEC Regulation No 3 of the Council concerning social security for migrant workers with reference to the application of Article 1244a of the Reichsversicherungsordnung (RVO) (German State Insurance Regulation). This article concerns the benefits which the pension organizations must pay to insured persons who suffer from tuberculosis. The question asks whether Articles 26 and 27 of Regulation No 3 are applicable by analogy to benefits such as those referred to in Article 1244a of the RVO.
2. This article was introduced into the RVO by Article 31 of the Law of 23 July 1959 concerning assistance in cases of tuberculosis. In order to encourage and ensure the recovery of invalids in accordance with the first sentence of Article 1(1), this law provided for medical treatment, aid to integration into working life, economic aid and aid of a prophylactic nature to be provided by the social assistance organizations to all persons suffering from tuberculosis to the extent to which they cannot receive the necessary assistance by any other means. On the other hand, by referring solely to those tuberculosis sufferers who are insured with and receive pensions from pension insurance organizations and to their spouses and children, the introduction of Article 1244a into the RVO by the abovementioned Article 31 compelled the pension insurance organizations to provide such persons with, in particular, the necessary medical treatment and a temporary allowance even where, contrary to the general provisions of Article 1236 of the RVO concerning the conditions under which benefits are paid by the pension insurance organizations of workers, there is no reason to fear that the invalid's employment will be jeopardized or where no chance exists of maintaining, improving or re-establishing such employment by means of the measures provided for.
3. The file shows that the plaintiff in the main action, a German sickness insurance organization, claimed unsuccessfully from a German pension insurance organization the reimbursement of expenses incurred as a result of hospital treatment required by an Italian migrant worker's daughter who had contracted tuberculosis. The claim for reimbursement was rejected on the ground that Article 1244a of the RVO was not applicable, since the insurance periods completed in Germany by the worker in question were insufficient to satisfy the condition of 60 months' affiliation laid down therein. In order to settle the case before it, the German court must decide whether the affiliation periods previously completed by the worker in another Member State must be taken into account in applying Article 1244a of the RVO. To this end, therefore, the Bundessozialgericht must classify the benefits provided for by Article 1244a of the RVO in the light of the criteria which define the scope of Regulation No 3 of the Council concerning social security for migrant workers. Without being empowered to classify the abovementioned provision of the RVO in the context of the present proceedings, the Court may, however, provide the national court with factors of interpretation depending on Community law which might be useful to it in evaluating the effects of that provision.
4. Under the terms of Article 1 (b), Regulation No 3 applies to all the legislation of the Member States relating to the social security schemes and branches of social security referred to in Article 2(1) and (2), and under Article 2(3) the Regulation shall not apply to social assistance and medical aid. In order to reply to the question referred it is first necessary to consider whether such advantages as those provided by Article 1244a of the RVO are included in the social security benefits listed in Article 2(1) and (2) of Regulation No 3. Regulation No 3 must be interpreted with regard to the fundamental aim of Article 51 of the Treaty, which is to establish the most favourable conditions for achieving the freedom of movement and employment of Community workers within the territory of each of the Member States. The pursuit of this objective enables the concept of social security to be regarded as including the aim of preventing the spread of disease, which cannot be regarded as a mere measure of social assistance.
5. Considered from this point of view, a provision which establishes a direct link between the affiliation of an individual to a pension insurance scheme and the acquisition of a right to benefits which are payable by pension insurance organizations to insured persons and their dependants, as a result of the fact that they have contracted tuberculosis and chiefly in order to bring about their recovery, must be regarded as forming part of the legislation governing social security referred to in Article 2(1) of Regulation No 3. This classification cannot be modified by the fact that, since tuberculosis is contagious and constitutes a danger to public health, it has formed the subject of a special law providing for prophylactic or remedial measures which the social assistance organizations are required to apply in favour of any person residing in the Member State concerned, to the extent to which such benefits are not already provided by the insurance organizations.
6. Therefore, Article 2(1) of Regulation No 3 covers benefits of a prophylactic or remedial nature.
7. In order to reply to the question referred it is still necessary to consider whether the aggregation of the affiliation periods completed in the various Member States, which is necessary in order to acquire a right to the benefits in question, should be carried out on the basis of Articles 26 and 27 of Regulation No 3 to which the German court refers.
8. As is pointed out in the order referring the matter, in the absence of any contrary provision, benefits which are not related to the earning capacity of the insured person cannot be regarded as invalidity benefits within the meaning of Article (2)(l)(b) of Regulation No 3. On the other hand, where such benefits are also awarded to the members of the family of the insured perso nand where their essential aim is to cure the invalid and protect those who are in contact with him they must be regarded as sickness benefits within the meaning of Article 2(l)(a) of Regulation No 3.
9. Therefore, the aggregation of the affiliation periods completed in the various Member States, for the purposes of acquiring a right to such benefits, is governed by Article 16 et seq. of Regulation No 3.
10. Secondly, the question is also asked whether, in order to acquire a right to the benefits in question, an insurance organization in one of the Member States — the Federal Republic of Germany — must also take into account those periods of contribution which an insurance organization in another Member State, Italy, is bound to consider under a convention on social security concluded between Italy and a third country, Switzerland.
11. For the purpose of implementing the principle of the free movement of workers, Article 51 (a) of the Treaty empowers the Council to make arrangements to secure for workers the aggregation of all periods taken into account under the laws of the several countries. Article 16 of Regulation No 3, which lays down the rules relating to aggregation, only refers to the insurance periods and assimilated periods completed under the legislation of each of the Member States. Article 1 (b) of that regulation states that the term legislation shall mean all laws, regulations and other enforceable provisions (dispositions statutaires) present and future of each Member State relating to the social security schemes and branches of social security.
12. Therefore, for the purposes of acquiring a right to social security benefits, social security organizations in the Member States are not bound to take into account affiliation periods completed in third countries.
13. The costs incurred by the Government of the Italian Republic and the Commission of the European Communities, which have 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 ofr that court.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Bundesverband der Ortskrankenkassen, the Italian Government and 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 51 and 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; 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 Bundessozialgericht, by a decision of that court dated 1 March 1972, hereby rules:
1 A provision which establishes a direct link between affiliation to a pension insurance scheme and the acquisition of a right to benefits which are payable by pension insurance organizations to insured persons and their dependants as a result of the fact that they have contracted tuberculosis and chiefly in order to bring about their recovery, must be regarded as forming part of the legislation governing social security referred to in Article 2 (1) of Regulation No 3;
2 The social security benefits which, although not related to the earning capacity of the insured person, are also awarded to the members of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits within the meaning of Article 2 (1) (a) of Regulation No 3. For the purposes of acquiring a right to such benefits, therefore, the aggregation of the affiliation periods completed in the various Member States is governed by Article 16 et seq of Regulation No 3.
3 For the purposes of acquiring a right to social security benefits, social security organizations in the Member States are not bound to take into account affiliation periods completed in third countries.