JUDGMENT OF 26. 5. 1976 – CASE 103/75 AULICH v BUNDESVERSICHERUNGSANSTALT FÜR ANGESTELLTE

In Case 103/75 Reference to the Court under Article 177 of the EEC Treaty by the Landessozialgericht Berlin for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, M. Sørensen and Lord Mackenzie Stuart, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact

I — Facts and procedure

II — Written observations submitted before the Court

III — Oral procedure

Law

Costs

I —. Facts and procedure

II —. Written observations submitted before the Court

(a). In its first question, the Landessozialgericht, Berlin, adopts the view that Article 27 of Regulation No 1408/71 creates rights to benefit against the institution of one Member State and takes the place of these rights against another Member State. This viewpoint does not take fully into account either the meaning of Article 27 or its place in the system of coordinating sickness insurance schemes established by the regulation.

(b). Neither the wording nor the meaning or objective of Article 27 justify the view that it replaces the provisions relating to the grant of allowances towards contributions to voluntary sickness insurance subject to contribution by the State of residence. These allowances towards sickness insurance constitute neither benefits in kind nor benefits in cash but a supplementary privilege for those entitled to old-age insurance benefits.

(c). The provision in Article 27 under which a pensioner shall receive benefits from the institution of his place of residence as though he were a pensioner whose pension was payable solely under the legislation of the latter State refers to the relationship of the pensioner not with the insurance institution of the other Member State but with the insurance institution of the State of residence; its object is to emphasize the exclusive responsibility of the latter institution for granting the whole of the sickness insurance benefits relating to the whole of the insurance periods completed by the pensioner.

(d). Since the answer to the first two questions is in the negative, the last no longer requires to be answered. Nevertheless, it may be desirable to state that the widening of the scope of Article 22 of Regulation No 3 effected by Regulation No 1408/71 does not mean any interference with the rights to which the pensioner is entitled under the national legislation of the country of the competent institution but that, on the one hand, under Article 27, he may, where appropriate, also receive cash benefits from the institution of his place of residence and at the latter's expense and, on the other hand, under Article 28 (1) he is in receipt of benefits in kind provided by the institution of the State of residence, even if he is not entitled to these benefits under the legislation of that State.

(e). In the Commission's view the questions referred should be answered as follows:

III —. Oral procedure

1. By order of 13 August 1975, which reached the Court of Justice on 29 September 1975, the Landessozialgericht, Berlin, has referred to the Court a question under Article 177 of the Treaty concerning the interpretation of Article 27 and of Section H (1) of Annex V to Regulation No 1408/71 (OJ, English Special Edition 1971 (II), p. 416).

2. The question was raised in connexion with a dispute between a German insurance fund and a retired person of German nationality who resides in the Netherlands, where he receives an old-age pension but not sickness insurance benefits. It is concerned with the point whether the person concerned can take advantage of Paragraph 381 (4) of the Reichsversicherungsordnung in order to compel the German insurance fund to contribute towards the payment of the contribution which he pays for a voluntary sickness insurance which he took out with a Netherlands insurer.

3. The question is, essentially, whether Article 27 of Regulation No 1408/71 of the Council and Section H (1) (a) of Annex V, taken together, could have affected any right of a retired person to receive an allowance from an insurance fund of a Member State, under the legislation of the latter, towards a voluntary sickness insurance taken out under the legislation of another Member State if the retired person has his place of residence in the latter State.

4. In its original version, which was in force from 1 October to 31 December 1972, Article 27 provided as follows:

5. The effect of Article 27, in both of its versions, is to prevent the competent organization in the State of residence, which is compelled by national legislation to pay a sickness or maternity benefit, from relieving itself wholly or in part from that obligation on the ground that the person concerned is entitled to a benefit under the legislation of another Member State. It is nevertheless necessary to consider whether Article 27 may also have the effect of abolishing a right to receive a benefit of the kind in question due under the legislation of a State other than the State in which the retired person is resident.

6. Article 4 of Regulation No 1408/71 lists the types of benefit to which the regulation applies and links each of them to the materialization of a specific risk.

7. Article 27 forms part of Chapter I of Title III of the regulation which comprises special provisions relating to sickness and maternity benefits. Article 27 can, therefore, refer only to sickness or maternity benefits after materialization of the risk insured against. Since a benefit of the type of the allowance towards the contribution in dispute is not granted after materialization of the risk designated by the person entitled, it cannot be limited or affected by Article 27 of Regulation No 1408/71. A distinction must, in fact, be drawn between the contribution and the benefit: the first governs acquisition of the right, the second assumes that the right exists. Thus allowances, to the extent to which they represent a share in the contribution to sickness insurance, cannot constitute benefits from that insurance.

8. The answer which, in consequence, must be given to the national court is that Article 27 of Regulation No 1408/71 refers only to sickness or maternity benefit granted by the competent institution of the State in which the retired person is resident after those risks have materialized and cannot affect any right of the retired person to receive under the legislation of other Member States a benefit of the type of the allowance towards the contribution to a voluntary sickness insurance scheme.

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

On those grounds, THE COURT in answer to the question referred to it by the Landesgericht, Berlin, by order of 13 August 1975 hereby rules: