JUDGMENT OF 11. 10. 1973 — CASE 35/73 KUNZ v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE
In Case 35/73 Reference to the Court under Article 177 of the EEC Treaty by the Bundessozialgericht for a preliminary ruling in the action pending before that court between
THE COURT composed of: R. Lecourt, President, A. M. Donner and M. Sørensen, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh (Rapporteur), and Lord Mackenzie Stuart, 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 Statute
A — The plaintiff
B — The Commission
Grounds of judgment
Costs
I —. Facts and procedure
II —. Observations submitted under Article 20 of the Statute
A —. The plaintiff
B —. The Commission
1. First, it is precisely those provisions of Regulation No 3 governing the question of benefits in kind provided to the pensioner whose condition requires treatment in the country of residence, which are based on the existence of a right under the legislation of the State of residence. The provisions of Article 24 (2) and (3) of Regulation No 4 in this respect provide a clear confirmation free from any ambiguity.
2. The fact that Regulation No 3 has only partly achieved an ideal system, under which institutions of the place of residence or the place of stay would have a general obligation, is apparent also from a comparison with the provisions of Article 27 et seq. of Regulation No 1408/71. Whereas Article 27 of this Regulation is limited to repeating the text of Article 22 (1) of the former Regulation, Article 28 provides that the pensioner shall receive benefits in kind for himself or for the members of his family from the institution of the place of residence even when under the legislation of the State in whose territory he resides he does not have such a right. Article 28 of Regulation No 1408/71 thus no longer insists on the requirement of the existence of a right being also recognized by the legislation of the country of residence. All that is required is that the legislation of at least one of the States from whom the person concerned receives a pension provides entitlement to benefits in kind if the pensioner comes to reside in the territory of that State. It is not therefore possible to refer to these rules to interpret Regulation No 3.
1. In accordance with Article 177 of the Treaty establishing the EEC, the Bundessozialgericht, by order made on 20 October 1972 and lodged with the Registry on 28 February 1973, has referred to the Court a question on the interpretation of Article 22 of Regulation No 3 of the Council concerning social security for migrant workers.
2. A declaration is sought as to whether Article 22 of Regulation No 3 is to be interpreted as meaning that the State where he is resident must issue benefits in kind under pensioners sickness insurance to a pensioner who is entitled to pensions under the legislation of several Member States and is resident in one of them, even though this is not provided for by the law of that State, whereas another Member State, under whose legislation the pensioner is also entitled to a pension, would have had to issue such benefits'.
3. The said Article subjects the grant of benefits in kind to the right which the pensioner possesses to receive such benefits under the legislation of the country where he resides.
4. Whereas on the one hand Article 22 (5) deals with the indirect entitlement of members of the family of a pensioner to benefits chargeable to the State of their place of residence, when this latter does not coincide with that of the head of household, and on the other hand Article 22 (6) deals with direct entitlement of the pensioner or a member of his family to benefits chargeable to the State of their place of temporary residence, such is not the situation referred to by the question.
5. Although, after the period referred to in the question, Article 28 of Regulation No 1408/71 of 14 June 1971 imposes an obligation on the country of residence giving rise to an entitlement on the part of the pensioner to receive benefits in kind in the event of sickness whatever the legislation of that country, it follows however from the grounds given for the proposal by the Commission of 6 November 1966 for the amendment of Regulation No 3, that this is an extension of the Community's social law, which until then was limited to coordinating national laws regarding social security.
6. It follows from the foregoing that benefits in kind under pensioners' sickness insurance cannot be provided by a fund which is not liable by its national law.
7. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on 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 observations of the plaintiff in the main action 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 Article 177; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers, especially Article 22; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Communities, 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 question referred to it by the Bundessozialgericht by order of that Court dated 20 October 1972, hereby rules: