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Judgment of the Court of 11 March 1965. - Betriebskrankenkasse der Heseper Torfwerk GmbH v Egbertina van Dijk. - Reference for a preliminary ruling: Arrondissementsrechtbank Assen - Netherlands. - Case 33-64. European Court reports French edition Page 00131 Dutch edition Page 00128 German edition Page 00134 Italian edition Page 00128 English special edition Page 00097 Danish special edition Page 00035 Greek special edition Page 00039 Portuguese special edition Page 00039

Summary Parties Subject of the case Grounds Decision on costs Operative part

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FREEDOM OF MOVEMENT FOR PERSONS - MIGRANT WORKERS - INSURANCE - BENEFITS PAYABLE UNDER THE LEGISLATION OF A MEMBER STATE FOR INJURY SUFFERED IN THE TERRITORY OF ANOTHER STATE - RIGHT OF INSTITUTIONS LIABLE FOR PAYMENT OF BENEFIT WITH REGARD TO A THIRD PARTY ACCOUNTABLE FOR COMPENSATION - APPLICATION OF THE RELATIVE PROVISIONS

( REGULATION NO 3 OF THE COUNCIL OF THE EEC, ARTICLE 52 )

( A ) CF . PARA . 2(A ), SUMMARY, CASE 31/64, ( 1965 ) ECR 81 .

THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 52 OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ARE APPLICABLE EVEN BEFORE A BILATERAL AGREEMENT, AS REFERRED TO IN THE SECOND PARAGRAPH OF THAT ARTICLE, HAS BEEN CONCLUDED BETWEEN THE MEMBER STATES CONCERNED, THIS PARAGRAPH BEING INTENDED ONLY TO ALLOW THE STATES TO SETTLE AMONG THEMSELVES ANY POSSIBLE DETAILS CONCERNING THE APPLICATION OF THE PROVISIONS IN ORDER TO FACILITATE THE THE ADAPTATION OF NATIONAL LAW TO THE COMMUNITY RULES .

*/ 664J0031 /*.

( B ) THE PROVISIONS OF ARTICLE 52 OF REGULATION NO 3 ARE APPLICABLE TO FRONTIER WORKERS .

( C ) THE PROVISIONS OF THE FIRST PARAGRAPH OF THE SAID ARTICLE ARE APPLICABLE WHERE A WORKER WHO, UNDER THE LEGISLATION OF ONE MEMBER STATE, IS IN RECEIPT OF ONE OF THE BENEFITS MENTIONED IN ARTICLE 2 OF REGULATION NO 3 IN RESPECT OF AN INJURY SUSTAINED IN THE TERRITORY OF ANOTHER MEMBER STATE, WHETHER OR NOT SUCH INJURY IS CONNECTED WITH HIS WORK, IS ENTITLED TO CLAIM COMPENSATION FOR THAT INJURY FROM A THIRD PARTY IN THE LATTER STATE'S TERRITORY .

CF . PARA . 2(B ), SUMMARY, CASE 31/64, ( 1965 ) ECR 81 .

IN CASE 33/64

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARRONDISSEMENTSRECHTBANK, ASSEN ( NETHERLANDS ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

BETRIEBSKRANKENKASSE DER HESEPER TORFWERK GMBH, MEPPEN/EMS ( GERMANY ),

PLAINTIFF,

AND

MRS EGBERDINA KOSTER ( NEE VAN DIJK ), WIDOW, RESIDING IN KLAZIENAVEEN, PARISH OF EMMEN ( NETHERLANDS ),

DEFENDANT,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, PP . 561 ET SEQ .),

P.103

I - ON THE FIRST QUESTION

THE COURT HAS BEEN PROPERLY REQUESTED TO GIVE A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY BY THE ARRONDISSEMENTSRECHTBANK, ASSEN .

THE COURT IS REQUESTED BY THE FIRST QUESTION TO RULE WHETHER THE FIRST PARAGRAPH OF ARTICLE 52 OF REGULATION NO 3 IS APPLICABLE BEFORE THE BILATERAL AGREEMENT REFERRED TO IN THE SECOND PARAGRAPH OF THAT ARTICLE HAS BEEN CONCLUDED BETWEEN THE MEMBER STATES CONCERNED .

THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 52 ARE WORDED IN PEREMPTORY TERMS .

MOREOVER, THE SAID PARAGRAPH, IN PROVIDING THAT ' ANY CLAIMS BY THE INSTITUTION LIABLE FOR PAYMENT OF BENEFIT AGAINST SUCH THIRD PARTY SHALL BE GOVERNED BY THE FOLLOWING RULES ', REFERS ONLY TO SUBPARAGRAPHS ( A ) AND ( B ). THE PROVISIONS OF THIS PARAGRAPH ARE CLEAR AND CAPABLE OF DIRECT APPLICATION WITHOUT DIFFICULTY .

IN CONNEXION WITH THE FOREGOING IT SHOULD BE CONSIDERED WHETHER THE SECOND PARAGRAPH OF ARTICLE 52, IN PROVIDING THAT ' IMPLEMENTATION OF THESE PROVISIONS SHALL BE THE SUBJECT OF BILATERAL AGREEMENTS ', MAY RESULT IN A DEROGATION FROM THE FIRST PARAGRAPH .

IT DOES NOT APPEAR AT ALL FROM ARTICLE 52 CONSIDERED IN ITS ENTIRETY THAT IT IS INTENDED TO MAKE THE IMPLEMENTATION OF THE RIGHTS CREATED BY IT OPTIONAL BY MAKING THEM DEPENDENT ON THE CONCLUSION OF THE SAID AGREEMENTS OR, AT THE RISK OF CREATING DISCRIMINATION, OF MAKING THE DATE OF THE IMPLEMENTATION OF THESE RIGHTS VARY AT THE DISCRETION OF EACH MEMBER STATE .

MOREOVER, THE RIGHTS CONFERRED ON THE NATIONAL SOCIAL SECURITY INSTITUTIONS BY VIRTUE OF THE FIRST PARAGRAPH OF ARTICLE 52 CONSTITUTE A LOGICAL AND FAIR COUNTERPART TO THE EXTENSION OF THE OBLIGATIONS OF THE SAID INSTITUTIONS THROUGHOUT THE ENTIRE COMMUNITY AS A RESULT OF THE PROVISIONS OF REGULATION NO 3 .

THE SAID FIRST PARAGRAPH FALLS TO BE APPLIED ON THE SAME BASIS AND UNDER THE SAME CONDITIONS AS THOSE PROVISIONS .

THE REASON FOR THE EXISTENCE OF THE SECOND PARAGRAPH LIES IN THE CAUTION OF ITS AUTHORS WHO WISHED TO ALLOW THE STATES TO SETTLE AMONG THEMSELVES ANY POSSIBLE DETAILS CONCERNING THE APPLICATION OF THE PROVISIONS IN ORDER TO FACILITATE THE ADATPATION OF THE NATIONAL LAW TO THE COMMUNITY RULES .

P.104

ACCORDINGLY THE FIRST QUESTION ASKED BY THE ARRONDISSEMENTSRECHTBANK, ASSEN, MUST BE ANSWERED IN THE AFFIRMATIVE .

II - ON THE SECOND QUESTION

BY THE SECOND QUESTION THE COURT IS REQUESTED TO RULE WHETHER THE FIRST PARAGRAPH OF ARTICLE 52 OF REGULATION NO 3 APPLIES TO A WORKER WHO IS EMPLOYED IN THE FRONTIER ZONE OF GERMANY BUT WHO RESIDES IN THE FRONTIER ZONE OF THE NETHERLANDS, TO WHICH HE RETURNS REGULARLY ONCE A WEEK, AND WHO HAS SUFFERED IN THE NETHERLANDS AN ACCIDENT UNCONNECTED WITH HIS WORK .

( 1 ) IT SHOULD BE CONSIDERED FIRST WHETHER ARTICLE 52 IS NOT INAPPLICABLE RATIONE PERSONNAE, PARTICULARLY SINCE ' FRONTIER WORKERS ' ARE NOT COVERED BY THE SAID PROVISIONS .

A RESTRICTION ON THE FIELD OF APPLICATION OF ARTICLE 52 RATIONE PERSONAE CANNOT BE CONSTRUED FROM THE WORDING OF THE PROVISION ITSELF .

INDEED, ACCORDING TO THE WORDING OF THAT PROVISION, IT IS ONLY NECESSARY FOR THE PERSON CONCERNED TO BE ' IN RECEIPT OF BENEFIT UNDER THE LEGISLATION OF ONE MEMBER STATE, IN RESPECT OF AN INJURY SUSTAINED IN THE TERRITORY OF ANOTHER STATE ' AND TO BE ' ENTITLED TO CLAIM COMPENSATION FOR THAT INJURY FROM A THIRD PARTY IN THE LATTER STATE'S TERRITORY '.

UNDER ARTICLE 4(3 ) OF REGULATION NO 3 THE PROVISIONS OF THE LATTER DO NOT APPLY TO FRONTIER WORKERS ' IN SO FAR AS THE BENEFITS TO WHICH THEY ARE ENTITLED ARE GOVERNED OR TO BE GOVERNED BY THE SPECIAL PROVISIONS OF A SOCIAL SECURITY CONVENTION FOR SUCH WORKERS '.

IT FOLLOWS FROM THE ABOVE WORDS THAT THE SAID BENEFITS, EVEN IF THEY ARE ONLY PARTLY GOVERNED BY REGULATION NO 3, REMAIN NEVERTHELESS BENEFITS WITHIN THE MEANING OF ARTICLES 2 AND 4 OF THE SAID REGULATION AND THEREFORE WITHIN THE MEANING OF ARTICLE 52 .

CONSEQUENTLY NO CONVENTION MAY VALIDLY EXCLUDE THE APPLICATION OF ARTICLE 52 TO FRONTIER WORKERS .

THIS VIEW IS CONFIRMED BY REGULATION NO 36/63 OF THE COUNCIL OF THE EEC OF 2 APRIL 1963 CONCERNING SOCIAL SECURITY FOR THE SAID WORKERS ( OFFICIAL JOURNAL OF 20 APRIL 1963, PP . 1314 ET SEQ .).

ACCORDING TO ARTICLE 23 OF THAT REGULATION THE PROVISIONS OF HEAD IV OF REGULATION NO 3, INCLUDING ARTICLE 52, CONTINUE TO APPLY TO FRONTIER WORKERS .

FOR ALL THESE REASONS IT FOLLOWS THAT ARTICLE 52 IS APPLICABLE RATIONE PERSONAE IN THE CASE OF FRONTIER WORKERS .

( 2 ) IT SHOULD STILL BE CONSIDERED WHETHER ARTICLE 52 IS NOT INAPPLICABLE RATIONE MATERIAE, FOR THE REASON THAT ACCIDENTS OCCURRING IN THE CIRCUMSTANCES DESCRIBED BY THE ARRONDISSEMENTSRECHTBANK, ASSEN, ARE NOT INDUSTRIAL ACCIDENTS .

ARTICLE 52 APPLIES WHERE THE INJURED PARTY HAS RECEIVED ' BENEFIT ' UNDER THE LEGISLATION OF A MEMBER STATE .

ARTICLE 1(S ) OF REGULATION NO 3 GIVES A GENERAL DEFINITION OF THE TERM ' BENEFITS '.

ARTICLE 2(1 ) REFERS TO A SERIES OF SPECIFIC BENEFITS GOVERNED BY NATIONAL LEGISLATION, TO WHICH THE REGULATION APPLIES SHOULD THE OCCASION ARISE .

IN THESE CIRCUMSTANCES ARTICLE 52 MUST BE REGARDED AS BEING APPLICABLE, SINCE UNDER THE LEGISLATION OF A MEMBER STATE THE PERSON IN QUESTION HAS RECEIVED BENEFIT IN ACCORDANCE WITH ONE OF THE HEADINGS LISTED IN ARTICLE 2(1 ) MENTIONED ABOVE .

CONSEQUENTLY THE SECOND QUESTION ASKED BY THE ARRONDISSEMENTSRECHTBANK, ASSEN, MUST BE ANSWERED IN THE AFFIRMATIVE .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC AND THE GOVERNMENT OF THE FRENCH REPUBLIC, WHICH SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE ARRONDISSEMENTSRECHTBANK, ASSEN, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE ARRONDISSEMENTSRECHTBANK, ASSEN, BY JUDGMENT OF 25 JULY 1964, HEREBY RULES :

1 . THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 52 OF REGULATION NO 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OFFICIAL JOURNAL OF 16 DECEMBER 1958, PP . 561 ET SEQ .) ARE APPLICABLE EVEN BEFORE A BILATERAL AGREEMENT, AS REFERRED TO IN THE SECOND PARAGRAPH OF THAT ARTICLE, HAS BEEN CONCLUDED BETWEEN THE MEMBER STATES CONCERNED;

2 . THESE PROVISIONS ARE APPLICABLE WHERE A WORKER WHO, UNDER THE LEGISLATION OF ONE MEMBER STATE, IS IN RECEIPT OF ONE OF THE BENEFITS MENTIONED IN ARTICLE 2 OF REGULATION NO 3 IN RESPECT OF AN INJURY SUSTAINED IN THE TERRITORY OF ANOTHER MEMBER STATE, WHETHER OR NOT SUCH INJURY IS CONNECTED WITH HIS WORK, IS ENTITLED TO COMPENSATION FOR THAT INJURY FROM A THIRD PARTY IN THE LATTER STATE'S TERRITORY .

AND HOLDS :

3 . IT IS FOR THE ARRONDISSEMENTSRECHTBANK, ASSEN, TO DECIDE ON THE COSTS OF THE PRESENT PROCEEDINGS .