Avis juridique important

Judgment of the Court of 2 December 1964. - A.M. Dingemans v Bestuur der Sociale Verzekeringsbank. - Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. - Case 24/64. European Court reports French edition Page 01259 Dutch edition Page 01323 German edition Page 01375 Italian edition Page 01243 English special edition Page 00647 Danish special edition Page 00557 Greek special edition Page 01227 Portuguese special edition Page 00583

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

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2 . FREE MOVEMENT OF PERSONS - MIGRANT WORKERS - INSURANCE - ' LEGISLATION ' WITHIN THE MEANING OF REGULATION N . 3 OF THE COUNCIL OF THE EEC - CONCEPT

1 . UNDER THE TERMS OF ARTICLE 177, THE COURT, WHEN GIVING A PRELIMINARY RULING, ONLY HAS JURISDICTION TO GIVE A RULING ON THE INTERPRETATION OF THE TREATY AND OF MEASURES OF THE INSTITUTIONS OF THE COMMUNITY, BUT CAN NEITHER APPLY THE TREATY AND SUCH MEASURES TO A SPECIFIC CASE, NOR RULE ON THE INTERPRETATION OF THE NATIONAL LAW OF A MEMBER STATE .

2 . THE EXPRESSION ' LEGISLATION ' USED IN ARTICLES 1 ( B ), 2 ( 1 ) ( OPENING WORDS ) AND ARTICLE 3 OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF THE EUROPEAN COMMUNITIES OF 16 DECEMBER 1958, PP . 561 ET SEQ .) ALSO APPLIES TO ANY NETHERLANDS LEGISLATION MAKING PROVISION FOR INVALIDITY INSURANCE WITH INVALIDITY BENEFITS, WITH THE EXCEPTION OF BENEFITS GRANTED IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES EVEN IF SUCH LEGISLATION ENTERED INTO FORCE AFTER REGULATION N . 3 AND EVEN IF NOTICE THEREOF WAS NOT GIVEN AS PROVIDED FOR IN ARTICLE 3 OF THE SAID REGULATION .

IN CASE 24/64

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE ACTING PRESIDENT OF THE CENTRAL RAAD VAN BEROEP ( CENTRAL COURT OF APPEAL ), BEING THE NETHERLANDS COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS, IN PURSUANCE OF AN ORDER OF THAT COURT OF 9 APRIL 1964, IN THE ACTION PENDING BEFORE IT BETWEEN

MISS A . M . DINGEMANS, RESIDING IN AMSTERDAM, APPELLANT,

AND

SOCIALE VERZEKERINGSBANK ( SOCIAL INSURANCE BANK ), AMSTERDAM, RESPONDENT,

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF 16 DECEMBER 1958, PP . 561 ET SEQ .)

A REQUEST FOR AN INTERPRETATION UNDER ARTICLE 177 OF THE EEC TREATY HAS BEEN BROUGHT BEFORE THE COURT BY THE CENTRALE RAAD VAN BEROEP . THIS REQUEST IS IN ESSENCE DIRECTED TO FINDING WHETHER CERTAIN PROVISIONS OF A COMMUNITY REGULATION ARE APPLICABLE TO A PARTICULAR NETHERLANDS LAW, NAMELY THE ' INTERIMWET INVALIDITEITSRENTETREKKERS ( IWI ) '. BY THE SAID ARTICLE 177, THE COURT, WHEN GIVING A PRELIMINARY RULING, ONLY HAS JURISDICTION TO GIVE A RULING ON THE INTERPRETATION OF THE TREATY AND OF ACTS OF THE INSTITUTIONS OF THE COMMUNITY, BUT CAN NEITHER APPLY THEM TO A SPECIFIC CASE, NOR RULE ON THE INTERPRETATION OF THE NATIONAL LAW OF A MEMBER STATE . IT IS SUBJECT ONLY TO THIS RESERVATION THAT THE COURT CAN ADMIT THE QUESTIONS WHICH ARE SUBMITTED TO IT IN THIS CASE .

I - AS TO THE FIRST QUESTION

BY THIS QUESTION, THE CENTRALE RAAD ASKS THE COURT TO SAY WHETHER ARTICLES 1 ( B ), 2 ( 1 ) ( OPENING WORDS ) AND ( B ) AND ARTICLE 3 OF REGULATION N . 3 MUST BE INTERPRETED ' SO AS TO REGARD THE IWI AS " LEGISLATION ", EVEN THOUGH THIS LAW WAS PROMULGATED AFTER THE REGULATION AND WAS NOT NOTIFIED IN ACCORDANCE WITH ARTICLE 3 ( 2 ) '.

1 . IT APPEARS FROM THE INFORMATION SUPPLIED BY THE CENTRALE RAAD VAN BEROEP THAT THE IWI PROVIDES FOR INVALIDITY INSURANCE WITH INVALIDITY BENEFITS .

UNDER ARTICLE 2 ( 1 ) ( OPENING WORDS ) AND ( B ) OF REGULATION N . 3, THE REGULATION ' SHALL APPLY TO ALL LEGISLATION GOVERNING ...INVALIDITY BENEFITS, INCLUDING BENEFITS GRANTED FOR THE PURPOSE OF MAINTAINING OR IMPROVING EARNING CAPACITY, OTHER THAN THOSE PAID IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES '. ANNEX B TO THE REGULATION, ENTITLED ' LEGISLATION TO WHICH THE REGULATION APPLIES ', REFERS, IN PARAGRAPH ( B ) OF THE SECTION RELATING TO THE NETHERLANDS, TO ' INVALIDITY INSURANCE, INCLUDING INCREASES IN PENSIONS '. THE REGULATION IS THEREFORE APPLICABLE TO ALL NETHERLANDS LEGISLATION PROVIDING FOR INVALIDITY INSURANCE WITH INVALIDITY BENEFITS WITH THE EXCEPTION OF BENEFITS GRANTED IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES .

2 . THE APPLICATION OF REGULATION N . 3 TO PARTICULAR LEGISLATION IS NOT EXCLUDED BY THE MERE FACT THAT THE LEGISLATION CAME INTO FORCE AFTER THE REGULATION AND MY NOT HAVE BEEN NOTIFIED TO THE PRESIDENT OF THE EEC COUNCIL, IN ACCORDANCE WITH ARTICLES 3 ( 2 ) AND 54 ( 1 ) OF THE REGULATION . IN FACT, ARTICLE 1 ( B ) OF THE REGULATION PROVIDES THAT WHEN IT USES THE TERM ' LEGISLATION ', IT REFERS TO THE LAWS, REGULATIONS, ETC ., ' PRESENT AND FUTURE ', OF EACH MEMBER STATE . THIS PROVISION WOULD BECOME MEANINGLESS IF IT WERE POSSIBLE FOR ANY MEMBER STATE TO INTERFERE ARBITRARILY WITH THE FIELD OF APPLICATION OF REGULATION N . 3, BY FAILING TO CARRY OUT THE ABOVE-MENTIONED NOTIFICATION . BESIDES, UNDER ARTICLE 3 ( 2 ) OF THE REGULATION, AN OBLIGATION TO NOTIFY EXISTS ONLY IN THE CASE WHERE THE ADOPTION OF NEW LEGISLATION NECESSITATES AN ' AMENDMENT ' TO ANNEX B . SUCH IS NOT THE CASE WHEN THE LEGISLATION COMES UNDER ONE OF THE HEADINGS SET OUT IN ANNEX B .

IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT ALL NETHERLANDS LEGISLATION PROVIDING FOR INVALIDITY INSURANCE WITH INVALIDITY BENEFITS, WITH THE EXCEPTION OF BENEFITS GRANTED IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES, CONSTITUTES LEGISLATION WITHIN THE MEANING OF THE ABOVE - QUOTED PROVISIONS OF REGULATION N . 3 EVEN THOUGH THE SAID LEGISLATION CAME INTO FORCE AFTER THE REGULATION AND WAS NOT NOTIFIED .

II - AS TO THE SECOND QUESTION

IN THE SECOND QUESTION, THE COURT IS ASKED TO SAY WHETHER THE SUPPLEMENTARY BENEFIT PROVIDED FOR IN CHAPTER II OF THE IWI IS AN INVALIDITY BENEFIT OF TYPE B, WITHIN THE MEANING OF ARTICLE 24 ( 1 ) OF THE REGULATION .

THE COURT IS COMPETENT TO INTERPRET THE TREATY, BUT IT IS NOT COMPETENT TO INTERPRET NETHERLANDS LAW . CALLED UPON BY THE CENTRALE RAAD TO EXAMINE ARTICLE 24 ( 1 ), IT OBSERVES THAT THE SAID PROVISION DEFINES TYPE B LEGISLATION AS THAT ' UNDER WHICH INVALIDITY BENEFITS ARE AS A RULE CALCULATED IN RELATION TO THE DURATION OF COMPLETED PERIODS '. HOWEVER, ANNEX F, THE TITLE OF WHICH REFERS TO THE TYPES ' DEFINED ' BY ARTICLE 24 ( 1 ), WAS ALTERED BY AN AMENDMENT PUBLISHED IN THE OFFICIAL JOURNAL OF 14 FEBRUARY 1964, AFTER THE PROMULGATION OF THE IWI, WHICH CLASSIFIES NETHERLANDS LEGISLATION AS TYPE B LEGISLATION, WITH THE EXCEPTION OF THE PENSION SCHEME FOR CERTAIN MINERS . THE LEGALITY OF THAT AMENDMENT HAS NEVER BEEN CONTESTED . THE COURT CAN THEREFORE ONLY TAKE NOTE OF THIS SITUATION .

III - AS TO THE THIRD AND FOURTH QUESTIONS

THE REPLY GIVEN TO THE SECOND QUESTION MAKES THE THIRD AND FOURTH QUESTIONS POINTLESS . HOWEVER, BECAUSE OF ARTICLES 26 ( 1 ), 25 AND 24 ( 1 ) OF REGULATION N . 3, THE SAID REPLY INVOLVES THE POSSIBILITY OF APPLYING ARTICLES 27 AND 28 OF THE REGULATION ' BY ANALOGY '. THE CENTRALE RAAD, HAVING ALREADY MADE A PREVIOUS REQUEST ( CASE 100/63 ) FOR A PRELIMINARY RULING ASKING THE COURT TO INTERPRET THESE PROVISIONS, WAS NOT OBLIGED TO RAISE THE QUESTION AGAIN IN THE PRESENT CASE . AS A RESULT, IT IS SUFFICIENT TO RECALL THE INTERPRETATION SUPPLIED IN PARAGRAPH 2 OF THE OPERATIVE PART OF THE JUDGMENT GIVEN IN THAT CASE ( REC . 1964, P . 1128 ), NAMELY THAT ARTICLE 28 IS APPLICABLE ONLY IF IT IS A QUESTION OF THE ACQUISITION, MAINTENANCE OR RECOVERY OF THE RIGHT TO BENEFIT .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC WHICH HAS SUBMITTED ITS 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 CENTRALE RAAD VAN BEROEP, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP BY DECISION OF 29 APRIL 1964

HEREBY :

1 . RULES THAT THE EXPRESSION ' LEGISLATION ' USED IN ARTICLE 1 ( B ), ARTICLE 2 ( 1 ) ( OPENING WORDS ) AND ARTICLE 3 OF REGULATION N . 3 OF THE COUNCIL OF THE EEC CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( OJ OF THE EUROPEAN COMMUNITIES OF 16 DECEMBER 1958, PP . 561 ET SEQ .) ALSO INCLUDES ANY NETHERLANDS LEGISLATION MAKING PROVISION FOR INVALIDITY INSURANCE WITH INVALIDITY BENEFITS, WITH THE EXCEPTION OF BENEFITS GRANTED IN RESPECT OF INDUSTRIAL ACCIDENTS OR OCCUPATIONAL DISEASES, EVEN THOUGH THIS LEGISLATION CAME INTO FORCE AFTER REGULATION N . 3 AND WAS NOT NOTIFIED AS PROVIDED FOR UNDER ARTICLE 3 OF THE SAID REGULATION;

2 . DECLARES THAT THE AMENDMENT TO ANNEX F TO REGULATION N . 3 PUBLISHED IN THE OFFICIAL JOURNAL OF 14 FEBRUARY 1964, SUBSEQUENT TO THE INTERIMWET INVALIDITEITSRENTETREKKERS, SHOWS THAT THE NETHERLANDS LEGISLATION IS OF TYPE B, EXCEPT FOR THE SYSTEM OF PENSIONS FOR CERTAIN MINERS;

3 . RULES THAT THE DECISION AS TO THE COSTS OF THESE PROCEEDINGS IS A MATTER FOR THE CENTRALE RAAD VAN BEROEP .