JUDGMENT OF 11. 3. 1965—CASE 33/64 BETRIEBSKRANKENKASSE HESEPER TORFWERK v KOSTER
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
THE COURT composed of: Ch. L. Hammes, President, A. M. Donner and R. Lecourt, Presidents 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
Issues of fact and of law
I — Questions submitted to the Court
By judgment of 25 July 1964 the Arrondissementsrechtbank, Assen, requested the Court to give a preliminary ruling on the following questions:
1) Must the first paragraph of Article 52 of Regulation No 3 concerning social security for migrant workers be regarded as applicable even before the entry into force, between the Member States concerned, of the bilateral agreement provided for in the second paragraph of that Article?
2) Must the first paragraph of Article 52 of the said Regulation be regarded as applying also to a case similar to that of Joh. F. de Munnik, who was working in the Federal Republic of Germany for an employer established in the frontier zone of that country, but who lived at Zwartemeer, in the frontier zone of the Netherlands, where he regularly returned once a week, and who was, during his own time and in his own country, a victim of the accident in question which had no connexion with his work and which did not take place whilst he was travelling from his place of work to his home or vice versa?
The Assen court regards the following facts as established:
on 8 July 1961, a collision took place at Emmen (Netherlands) between a car driven by Mr Klein, who at that time was employed by the defendant, and a motor-cycle ridden by Mr de Munnik, who was injured;
at the time of the accident Mr de Munnik lived in the Netherlands, although he was a wage-earner employed by the Heseper Torfwerk GmbH in Germany;
the accident occurred on a day off, while Mr de Munnik was neither going to his place of work nor returning home;
the plaintiff, the social security institution of Mr de Munnik's employer, paid Mr de Munnik the sum of 4818.13 DM; this sum includes compensation for sick leave and unemployment benefit.
The file shows that before the Arrondissementsrechtbank, Assen, the parties advanced the following submissions and arguments in particular:
The applicant, the Betriebskrankenkasse der Heseper Torfwerk GmbH, states
that Mr Klein — and because of this his principal, the defendant in whose service he was at the time of the accident — is responsible for the injuries suffered by Mr de Munnik;
that, in accordance with the German legislation, the applicant is subrogated to Mr de Munnik in his claims against the defendant;
that in accordance with subparagraph (a) of the first paragraph of Article 52 of Regulation No 3, which was already applicable, every Member State is obliged to recognize such subrogation.
The defendant, Mrs Koster, replies:
that the said Article 52 is inapplicable in the present case, no agreement such as that provided for in the last paragraph of this provision having been made between Germany and the Netherlands;
that it is inapplicable also because Mr de Munnik is not a migrant worker, but a frontier worker within the meaning of Regulation No 3; that under Article 4 (3), the Regulation is not applicable to frontier workers in so far as the benefits to which they are entitled are governed by the special provisions of a social security Convention for such workers; and that such a convention exists between Germany and the Netherlands.
II — Procedure
The plaintiff in the main action pending before the Assen Court, the Government of the French Republic and the Commission of the EEC have submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.
The oral procedure took place on 1 December 1964.
The Advocate-General delivered his opinion on 17 December 1964.
III — Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
The observations mentioned above may be summarized as follows:
1. Observations of the plaintiff in the main action
A— As to the first question
This question must receive an affirmative answer.
In accordance with Article 88 of Regulation No 4 of the Council of the EEC (Official Journal of 16 December 1958, p. 626), Regulation No 3, including Article 52, came into force on 1 January 1959. The said Article 88 replaced Article 56 of Regulation No 3; the terms in which Article 88 derogates from Regulation No 3 confirm the directly applicable nature of the provision in question.
Moreover, the fact of stating that implementing measures may be taken implies that what should be applied already exists, that is to say, is in force.
B — As to the second question
The reply to this question is also affirmative.
The German-Netherlands Convention of 29 March 1951 contains no ‘special provisions’ such as those referred to in Article 4 (3) of Regulation No 3; it cannot thus be substituted for that Regulation.
Regulation No 3 draws no distinction between industrial accidents and others.
2. Observations of the Government of the French Republic
The French Government adopts a position only on the first question.
It deduces from the wording of Article 52 that the rights provided for in the first paragraph come into existence as from the entry into force of Regulation No 3 but cannot be exercised until the time when the bilateral agreement provided for in the second paragraph of the provision in question has come into force between the States concerned.
3. Observations of the Commission
A — As to the first question
a) As a preliminary matter, the Commission points out:
that in Regulation No 3 Article 51 and Article 52 are the only examples of new rules of law made by the Community legislature which rely for their application on classical bilateral conventions to be concluded in the future;
that it is appropriate to recall that the said Regulation was first drafted as a classical international convention and that the provision in dispute was taken without alteration from the original draft;
that the working documents are such that it is not possible to ascertain with precision the intention of the authors of the said provision; that it appears nevertheless that the last sentence of the provision is due only to a desire for caution; the draftsmen, not being experts in civil law, feared that the rules of Article 52 were not sufficient in themselves;
that, however, it is now appropriate to consider whether this anxiety is justified.
b) In favour of the immediate applicability of Article 52, the following arguments may be put forward:
1) In the absence of express provision for immediate applicability, such as exists for other provisions, this Article came into force together with the whole of Regulation No 3. It would thus be difficult to accept that the authors of the Regulation wanted to delay the coming into force of the said Article until the various successive dates on which the bilateral agreements were made. On examining the solutions adopted by the rules of the Member States for putting laws into effect, the Commission considers that the reference to measures taken in implementation could not lead to the suspension of the enforcement of Article 52 unless its putting into operation was impossible until the measures taken in implementation had been promulgated. Such is not the case, the rule in question being sufficiently clear and complete not to require measures to be taken in implementation of it. This is corroborated by the bilateral agreements which have been concluded between certain Member States since the entry into force of Regulation No 3, and which have added nothing to Article 52; the agreement made between Germany and Luxembourg even declared expressly 'that the first and second sentences of Article 52 … shall be fully applicable without the agreement provided for by the third sentence being required.
2) Article 85 of Regulation No 4 of the Council of the EEC (Official Journal of 16 December 1958, pp. 597 et seq.), at least in the German version (‘Treffenddie zustandigen Behörden von Mitgliedstaaten zweiseitige Vereinbarungen zur Anwendung der Artikel 51 und 52 der Verordnung, so …’), suggests that in the minds of the authors bilateral agreements are not indispensable
3) The precautions taken by the authors of Article 52 might be explained by the fact that this provision was drafted at the same time as Article 51 which does not suffice by itself.
c) Against immediate applicability, it is possible to argue that:
1) The German and Dutch versions of Article 52 seem to indicate that the rules of that Article must be stated;
2) It does not appear to be open to dispute that at the time when the Article in question was drafted, and in the perspective of its insertion into a classical convention, its authors had the intention of deferring the applicability of Articles 51 and 52, and thus of subordinating them to subsequent bilateral agreements;
3) Four Member States have actually made bilateral agreements and, in so doing, have interpreted Article 52 so as not to make the rules set out in it immediately applicable.
d) In conclusion, the Commission is disposed to defend the argument favouring immediate enforceability, for two essential reasons:
1) It appears hardly desirable that Community provisions should depend for their entry into force upon the goodwill of the States;
2) It is equally undesirable that provisions of Community law should not be uniformly and simultaneously applicable throughout the Community and that private individuals on whom these provisions confer rights cannot exercise them equally in all the Member States.
B — As to the second question
(a) Preliminary observations
In fact this question consists of two:
Is Article 52 applicable to a frontier worker in relations between Germany and the Netherlands (see (b) below)?
Is it applicable when the damage arises from an accident which is neither an industrial accident nor one on the road to and from work (see (c) below)?
(b) As Jo the first subdivision of the question
The reply must be affirmative, independently of whether the provisions of the Regulation in question are considered before (1. below) or after (2. below) the coming into force of Regulation No 36/63 of the Council concerning social security for frontier workers (Official Journal of 20 April 1963, p. 1314) and the accompanying amendment of Article 4 of Regulation No 3.
1. Under Article 4 (3) of Regulation No 3 before its amendment, frontier workers were not excluded from the application of the provisions of the said Regulation except ‘in so far as the benefits to which they are entided are governed or to be governed by the special provisions of a social security Convention for such workers’. This Article thus gives priority to the said ‘special provisions’ over the provisions of the Regulation governing the same benefits, whilst all the other provisions of the Regulation are applicable to frontier workers, whether it is a matter of provisions of a general nature or of those relating to rights to benefits which are not governed in another way in a bilateral convention. This interpretation is confirmed by the expression ‘furthermore’ appearing in paragraph (4) of the same Article, which provided another exception to the applicability of the Regulation to frontier workers. It is also accepted by legal writers and the practice of the Administrative Commission provided for in Article 43 of Regulation No 3; this Commission has, in fact, stated that ‘the special provisions mentioned by Article No 4 of Regulation No 3 are clearly the specific, original provisions relating to those categories of workers, contained in the social security convention’ (Official Journal of 17 December 1959, p. 1229). Lastly, the Council and the two Member States concerned (Germany and the Netherlands) have considered it necessary, in order to keep certain provisions of the German-Netherlands Convention of 29 March 1951 (Bundesgesetzblatt, 1951 II, pp. 222 et seq.) in force in favour of frontier workers, to make use of Article 6 (2) of Regulation No 3 and to list them in Annex D (heading ‘Federal Republic of Germany — Netherlands’), which implies that the requirement of Article 6 (2) (d)—which contains the reference to Article 4 (4) mentioned above — was not sufficient in this respect. There are moreover no provisions, concerning rights to benefits, which are really peculiar to frontier workers in a convention between the Federal Republic and the Netherlands. As to Article 10 of the above-mentioned Convention, the only one which refers expressly to frontier workers, it only declares as being applicable to these workers the rules of Articles 8 and 9 relating to the payment of benefits for sickness and the reciprocal reimbursement of expenses, rules which are applicable to all workers, whilst leaving open the possibility of agreeing upon special regulations by technical agreement, an agreement which has not come about. Supposing even that it can be maintained that, by keeping in force certain Articles or parts of Articles for frontier workers only (see Annex D to Regulation No 3), these provisions of the German-Netherlands Convention have become provisions ‘peculiar to frontier workers’, it is proper to state: that this does not prevent the application of the provisions of Regulation No 3 concerning other benefits, nor of its general provisions, including Article 52; that the provisions of mat Convention concerning sickness insurance remaining applicable to frontier workers have nothing to do with the benefits provided in the present case by the plaintiff in the main action; these provisions are intended, in fact, to regulate cases in which the insured person receives benefit outside the country where he is affiliated, or when the institutions of the two countries are involved either by providing assistance or by becoming responsible for benefits. That is not the case in the present instance, since the right to benefits and assistance was regulated entirely by the legislation of the country of the competent institution, and only that institution was involved.
2. As to Regulation No 36/63, Article 3 thereof provides: Regulation No 36/63 does not derogate from Article 52 of Regulation No 3; on the contrary, Article 23 of Regulation No 36/63 expressly keeps in force ‘the miscellaneous provisions under Head IV of Regulation No 3’, including Article 52.
‘The provisions of Regulations Nos 3 and 4 shall apply in respect of persons to whom the present Regulation applies’ —that is to say frontier workers—‘save where the latter specifically provides otherwise.’
(c) As to the second subdivision of the question
Here, the reply must also be affirmative.
Article 52 of Regulation No 3 is drafted in quite general terms, and thus covers all the cases where the establishment of the liability of a third party may be sought with the aim of securing compensation for damage giving rise to action by a social security institution. It is sufficient for it to be applicable that the damage has occurred in the territory of a State other than that of the institution which has provided benefits, and that under the legislation applicable to it this institution is subrogated to the rights of its insured member against the third parity responsible.
These conditions are all present in this case.
Grounds of judgment
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 setde among themselves any possible details concerning the application of the provisions in order to facilitate the adaptation of the natonal law to the Community rules.
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.
III — Costs
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.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the EEC and of the defendant; 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 (Official Journal of 16 December 1958, pp. 561 et seq.); Having regard to Regulation No 36/63 of the Council of the EEC concerning social security for frontier workers (Official Journal of 20 April 1963, pp. 1314 et seq.); 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 Arrondissementsrechtbank, Assen, by judgment of 25 July 1964, hereby rules:
I 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.
3 It is for the Arrondissementsrechtbank, Assen, to decide on the costs of the present proceedings.