JUDGMENT OF 2.12.1964 — CASE 24/64 DINGEMANS v SOCIALE VERZEKERINGSBANK
In Case 24/64 Reference to the Court under Article 177 of the EEC Treaty by the acting President of the Centrale 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
THE COURT composed of: Ch. L. Hammes, President, A. M. Donner and R. Lecourt, President of Chambers, L. Delvaux, A. Trabucchi, W. Strauß (Rapporteur) and R. Monaco, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
I — Issues of fact and of law
1. By letter of 28 May 1964 the acting President of the Centrale Raad van Beroep (Central Court of Appeal) submitted to the Court a copy of his Order of 29 April 1964, in pursuance of which the following questions were brought before the Court of Justice under Article 177 of the Treaty establishing the EEC:
‘1) Must Articles 1 (b), 2 (1) (opening words) and (b) and Article 3 of the Regulation be interpreted so as to regard the Interimwet (that is, the Interimwet Invaliditeitsrentetrekkers (IWI), — the law on persons in receipt of disability pensions — a Netherlands law of 19 December 1962) as “legislation”, even though this law was promulgated after the Regulation and was not notified in accordance with Article 3 (2) ? In the event of an affirmative reply to Question 1:
I) Is the supplementary pension provided for in Chapter II of the IWI an invalidity benefit of Type B, within the meaning of Article 24 (1) of the Regulation? (The supplementary pension as such consists of a fixed annual sum without reference to the duration of the periods of insurance, but includes the invalidity pension claimed by the beneficiary, the amount of which depends upon the duration of the periods of insurance). In the event of a negative reply to Question 2:
3) Must the supplementary pension provided for in Chapter II of the IWI be regarded as an invalidity benefit of Type A, or of Type A and of Type B, within the meaning of Article 24 (1) of the Regulation?
4) If the supplementary pension provided for in Chapter II of the IWI should be regarded as an invalidity benefit of Type A, must Article 28 (1) (b) of the Regulation then be applied in order to determine the amount of the supplementary pension? This is a point of view which the defendant has adopted as a subsidiary argument referring to the second question which the Raad put to the Court of Justice of the EEC in its letter of 11 November 1963, No AWW 1963/4, 5, 8, 9, 12, 13, 14, 15, 25 and 26.’
2. The above-mentioned Order is based in particular on the following considerations:
‘By decision of 25 April 1956 the respondent granted to the appellant in accordance with the Invaliditeitswet (IW) an annual invalidity pension of a sum of 6.84 guilders for which, in addition to 66 premiums needed for insurance on the basis of the IW, 381 premiums counting for German social insurance were taken into consideration under Article 13 of the Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany on social security in order to reach the invalidity period required by the first paragraph of Article 71 of the IW.
By a decision of 16 August 1963, the respondent granted the appellant a supplementary pension with effect from 1 January 1963 under the Law of 19 December 1962, Staatsblad 534, which laid down transitional provisions for persons entitled to an invalidity pension (IWI), and fixed this supplementary pension at such a sum as would bring the supplementary pension and the invalidity pension together to 582 guilders per year.
The respondent considered that the IWI plainly fell within the category of legislation referred to in Article 2 (1) (b) in conjunction with Article 1 (b) of Regulation No 3. By virtue of Article 1 (s) of this Regulation it was applicable, without the notification referred to in Article 3 (2) of this Regulation, and without any need for an amendment to Annex B to the Regulation. The defendant thus fixed the amount of the supplementary pension referred to in Article 5 (a) of the IWI, in pursuance of Article 20 (1) (b) of Regulation No 3, pro rata with the length of the insurance periods completed in Holland as compared with the total length of periods completed in Holland and in Germany, thus fixing the sum at a figure 66/447ths of 3924 guilders rounded off to a multiple of 6 guilders, that is. 582 guilders.’
II — Procedure
The request of the Centrale Raad van Beroep was received at the Court of Justice on 29 May 1964.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission of the EEC.
The hearing was opened on 15 October 1964.
The Advocate-General delivered his opinion at the hearing on 3 November 1964.
III — Summary of the observations of the Commission
The observations submitted by the Commission of the EEC may be summarized as follows:
1. On the questions submitted to the Court
A — First Question
In accordance with the judgment of the Court in Case 100/63 (Van der Veen), this should be answered in the affirmative. Within the meaning of Article 2 (1) (b) of the Regulation, the IWI refers to ‘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’.
Moreover, as in Case 100/63, the adoption of the legislative provision in question did not require an amendment of Annex B to the Regulation (Netherlands) , since that provision clearly comes under (b) of this Annex: ‘invalidity insurance, including increases in pensions’.
B — Second and Third Questions
It is possible to summarize these questions as one and to consider them in this form.
(a) Admissibility of these questions
1. It may be asked whether these questions, as formulated, do not in reality relate to a question of interpretation of national law, in this case an examination of the method of calculation selected by the Netherlands legislature. The notion that such an examination should be reserved to Member States is defensible and Article 24 (2) of the Regulation, Annex F to which determines with regard to each state to what Type its legislation or invalidity insurance belongs, indicates this. It is however possible to interpret the questions so that they refer to the meaning to be given to the definitions provided by Article 24 (1) of ‘provisions of Type A’ and ‘of Type B’.
2. The questions are irrelevant to the decision. The Netherlands court is wrong in considering that a reply to the fourth question requires as a preliminary answers to Questions 2 and 3. It follows from Article 26 (1) together with Articles 25 and 24 (1) (a) of the Regulation that Articles 27 and 28 remain inapplicable only in those cases where the person concerned has taken into account his insurance periods under Type A exclusively. In the case in question it has been established that the applicant was also insured in the Federal Republic of Germany, whose legislative provisions belong to Type B. In principle, Article 28 is consequently applicable whether the Netherlands law belonged to Type A or to Type B.
(b) Reply to be given to the questions
The term ‘as a rule’ used in Article 24 (1) (a) shows that the definitions are somewhat imprecise. It is probable that they have been intentionally done in this way to allow the Member States a certain discretion in the classification of their relevant provisions.
In fact, all the legal provisions which make the calculation of the payment of benefits dependent, even partially, on the insurance periods are classified under Type B.
Since the IW indisputably belongs to Type B, the classification of the IWI gives rise to difficulties. According to that Law the supplementary pension is calculated on the basis of a sum total, composed of the pension and the supplementary pension, the amount of which does not depend on insurance periods but on the degree of incapacity for work. Certainly, in this method of calculation, the amount of the supplementary pension depends indirectly on insurance periods, because it constitutes the difference between the total amount and the pension (fixed on the basis of the insurance periods); on the other hand the figure of the total amount does not depend on the insurance periods. The Commission comes to the conclusion that the IWI should rather be classified under Type A.
C — Fourth Question
a) This question may lead to confusion, since it requires a reply independent of the question to which Type the legal provisions at issue belong (cf. above, B, (a), 2).
b) The question should be examined in the light of the judgment in Van der Veen (Case 100/63) in accordance with which Article 28 of the Regulation (and consequently the percentage which it provides for) are only applicable when they concern ‘the acquisition, maintenance or recovery of the right to benefit’ within the meaning of Article 27. In the present case, the answer to the question whether Article 27 should be looked to in order to obtain the benefit of the payments under the Interimwet is very delicate. The right to an invalidity pension under the IW is only acquired if the insured person has made not less than 150 weekly contributions. On the other hand, the appellant's right to benefits on the basis of the IWI arises out of her entitlement to an invalidity pension. The defendant and the Raad van Beroep Amsterdam, have clearly started with the following reasoning: in order to admit the right of the appellant to a pension from 1 July 1953, it was necessary to refer to the German insurance periods; the aggregation was made under a provision of the German-Netherlands Treaty, which provision was replaced and continued by Article 27 (1) of Regulation No 3. Once it is established that the right to the invalidity pension in accordance with the IW was acquired and could still only be acquired now by this means, the right to the supplementary pension of the IWI could only be acquired by that aggregation. In a note, the Commission refers to Article 53 (2) and (4) of the Regulation. According to the first of these provisions, ‘all insurance periods completed under the legislation of a Member State before the date on which this Regulation comes into force shall be taken into consideration for the purpose of determining entitlement to benefits under this Regulation’, while the second of these provisions ‘gives the right (at the request of the person concerned) to a review of a pension calculated before this Regulation came into force’. ‘Consequently’, the Commission concludes, ‘the right to a Netherlands pension could have arisen retroactively, at 1 July 1953, under Article 27 (1) if there had been no prior German-Netherlands Treaty in existence’. These considerations are logical; nevertheless it might be argued that, taken by itself, the IWI does not make the payment of benefits provided therein dependent on a certain duration of the insurance period, but (in cases such as the present) on the sole fact that the insured person was entitled to a pension under the IW, and that consequently the acquisition of rights under the IWI remains independent of the existence of the German insurance periods. Consequently it is not necessary to apply Article 27 of the Regulation; in accordance with the decision in Case 100/63, Article 28 (1) (b) is not applicable, so that the Netherlands institutions are wrong, in invoking the latter provision, to reduce the benefit due on the basis of the IWI.
c) However, even though a different point of view is adopted, in principle, it would always be open for consideration whether, according to Case 100/63, Article 28 (1) (b) ‘is applicable only in so far as its application secures for the persons concerned benefits which amount to at least as much as those which they would receive by virtue of the national legislation applicable to them, considered independently of Regulation No 3’. In this case the application of Article 28 would involve lower benefits: until 27 February 1955, the applicant paid 150 contributions; even if, under the German-Netherlands Treaty the effect of which was continued by Article 27 (1) of the Regulation, the Netherlands authorities had not effected an aggregation in favour of the appellant in order to grant her a pension from 1 July 1953, she would nevertheless have been entitled to an invalidity pension, independently of Regulation No 3, pursuant to the Netherlands legislation. Consequently, still on the basis of Netherlands law alone, the appellant would have been entitled to a payment of benefits in accordance with the IWI and these payments would have been much higher than those which she is at present drawing.
2. Opinions on other questions
a) The Centrale Raad van Beroep ought not to have adopted implicitly the opinion of the court of first instance, in accordance with which Article 28 (1) (f) and (3) of the Regulation are not applicable, but should have submitted these questions, which are important for this case, to the Court. The Commission leaves it to the Court to decide whether it considers itself competent or indeed bound to raise these questions of its own motion.
b) With regard to the merits, the Commission sees the position as follows:
1) Article 28 (1) (f) is a priori inapplicable, since the appellant fulfils the conditions provided for by the legislation of more than one Member State.
2) The question of the inapplicability of Article 28 (3) does not arise once the inapplicability of Article 28 (1) (b) is admitted.
In drawing up Article 28 (3), the authors of the Regulation wished to avoid the application of Article 28 (1) (b) resulting in a total amount less than that obtained under a single system of legislation (while always admitting that this legislation gives right thereto without aggregation). In this case, Article 28 (3) provides for an additional pension, equal to the difference, in favour of the insured person.
As has already been said (I, C, (c), above), on the basis of the Netherlands legislation alone, the appellant would have been entitled from 1955 to an invalidity pension and from 1962 she would have been entitled to the entire sum of the benefit accorded by the Interim Law (IWI).
Consequently the defendant was wrong in failing to apply Article 28 (3) of Regulation No 3 for the benefit of the appellant.
Grounds of judgment
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 No 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 No 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 No 3 to particular legislation is not excluded by the mere fact that the legislation came into force after the Regulation and may 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 No 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 abovequoted provisions of Regulation No 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 No 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.
IV — Costs
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.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to Regulation No 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.); Having regard to the amendment to Annex F to Regulation No 3, published in the OJ of 14 February 1964, p. 450; 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 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 No 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 No 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 No 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.