JUDGMENT OF 1. 3. 1973 — CASE 73/72 BENTZINGER v STEINBRUCHS-BERUFSGENOSSENSCHAFT

In Case 73/72 Reference to the Court under Article 177 of the EEC Treaty by the Baden-Württemberg Landessozialgericht (Court of Appeal on social questions) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore (Rapporteur), Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher and C. Ó Dálaigh, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

Hubert Bentzinger, an engineer of German nationality, resident at Weil/Rhein (Federal Republic of Germany), was employed from 1958 by the company Hupfer GmbH, a sand and paving-stone works at Weil/Rhein, and from 1963, with the agreement of his German employer, by the French company Grande Sablière de Saint-Louis, at Saint Louis in Alsace.

On 8 September 1970, Mr Bentzinger sustained an accident at work at Grande Sablière de Saint-Louis.

By letter dated 24 May 1971, he applied to the Steinbruchs-Berufsgenossenschaft (Professional Social Insurance Fund for quarry accidents) for compensation for the accident in accordance with the Reichsversicherungsordnung (German Social Security Code).

This application was rejected by a decision dated 27 September 1971, on the ground that Article 12 of Regulation No 3 of the Council of 25 September 1958, concerning social security for migrant workers (OJ No 30, p. 561), provides that wage-earners or assimilated workers employed within the territory of one Member State shall, in principle, be subject to the legislation of that State even if they permanently reside within the territory of another Member State.

When Mr Bentzinger brought the matter before the Sozialgericht (Court on social questions) of Freiburg-am-Brisgau, that court, by judgment of 21 March 1972, annulled that decision on the basis of Article 13 (1) (c) of Regulation No 3, as amended by Regulation No 24/64 of the Council of 10 March 1964 (OJ No 47, p. 746), under the terms of which wage-earners or assimilated workers who normally work within the territory of several Member States are, with certain exceptions, subject to the legislation of the State within whose territory they reside.

On appeal by the Steinbruchs-Berufsgenossenschaft, the Landessozialgericht of Baden-Württemberg (IInd Senate), sitting at Stuttgart, decided by order dated 21 September 1972, to suspend proceedings until the Court of Justice had given a preliminary ruling on the following question:

Does Article 13 (1) (c) of Regulation No 3 of the Council of 25 September 1958, concerning social security for migrant workers, imply that the worker only carries on his employment in several Member States for a single employer or whether this provision equally applies when the worker is in the service of several employers in several Member States?

The order of the Landessozialgericht was received at the Court Registry on 11 October 1972.

The Commission of the European Communities submitted its written observations on 19 December 1972, in accordance with the provisions of Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

After hearing the report of the Judge-Rapporteur and the opinion of the Advocate-General, the Court decided to open the oral procedure without any preparatory enquiry.

The oral observations of the defendant in the main action, represented by Maître Helmut Aulepp, advocate of the Freiburg-am-Brisgau bar, and the Commission, represented by its Legal Adviser Peter Karpenstein, were made at the hearing on 30 January 1973.

The Advocate-General presented his opinion at the hearing on 20 February 1973.

II — Observations submitted before the Court

The written and oral observations submitted before the Court may be summarized as follows:

A — As to admissibility

The Commission is of the opinion that this request for the interpretation of Regulation No 3 is admissible, although that Regulation has been repealed, as from 1 October 1972, by Regulation No 1408/71 of the Council, on the application of social security systems to wage-earners and their families moving within the Community (OJ No L 149, p. 2). In fact, the accident upon which the main action is based occurred and the request for a preliminary ruling was made at a time when Regulation No 3 was still in force. In order to anticipate a subsequent application for a preliminary ruling based on the provisions of Regulation No 1408/71, however, it would appear desirable also to take the new rules into account when replying to the question posed.

B — As to the merits

Mr Bentzinger, the defendant in the main action, submits that Article 13 (1) (c) of Regulation No 3 in no way implies that the worker only works in several Member States for a single employer. This interpretation is confirmed by Article 14 (1) (c) (i) of Regulation No 1408/71. The defendant in the main action should be subject to the legislation of the Member State within whose territory he has his residence, that is that of the Federal Republic of Germany.

The Commission emphasizes the following points in particular:

a) As to the principle of the applicability of the legislation of a single Member State Rules coordinating the social security systems within the Community should of necessity determine the legislation applicable in circumstances where the place of residence and the place of work are not in the same State or where work is carried out in several Member States. The problem is to avoid plurality or confusion of benefits and liabilities arising from the simultaneous or alternative application of several legislations. Regulation No 3 and Regulation No 1408/71 are therefore based on the idea that the worker must — when it is a case of one and the same period — be subject only to the legal provisions of a single Member State.

b) As to the system of rules of reference When the worker only carries on his professional activity in a single Member State, he is subject to the legislation of that State. If, on the other hand, he carries on his activity, in either a permanent or temporary manner, in different Member States, the system applicable to him varies according to the circumstances of each case. Article 12 of Regulation No 3 establishes the principle that the worker is subject to the social security system of the Member State within whose territory he is employed. Article 13 lays down certain exceptions to this principle. The first concerns ‘seconded’ workers, that is workers who are provisionally sent by their employer situated in one Member State to the territory of another Member State in order to carry out work on the employer's behalf. The second exception concerns workers who form part of the land, sea, air or inland waterway transport personnel of an undertaking carrying passengers or goods within the territory of one or more Member States. The third exception, contained in Article 13 (1) (c) of Regulation No 3, concerns cases where a worker not falling within the category mentioned in Article 13 (1) (b) normally carries on his employment within the territory of several Member States. This exception was included in Regulation No 3 by Regulation No 24/64 of the Council. Article 13 (1) (c) presents several hypotheses. The first clause applies in the case — which forms the basis of the main action — of a wage-earner or assimilated worker having his residence within the territory of one Member State and working in the State in which he resides as well as in other Member States.

c) As to the interpretation of Article 13 (1) (c) of Regulation No 3 The exceptions to the principle of the application of the law in force in the State in which the worker is employed in no way presuppose employment by a single undertaking. To admit a contrary interpretation would lead to a result which Regulations Nos 3 and 1408/71 intend in actual fact to preclude, that is to say the simultaneous application of two legal systems, with all the attendant complications of a double insurance of that nature. In the case in question, it is undoubtedly perfectly possible to say of the accident of the applicant that, as it happened on the French employer's site, it should have come under French accident insurance. The position becomes doubtful, however, in a case where the accident occurs on the journey between the two employers. Moreover, risks such as illness, disablement or maternity are completely indivisible and cannot be imputed to employment by one employer or another. A general dissociation from various risk covered by social security is not possible; and this fact excludes an interpretation of Article 13 which leads to the concurrent application of several legislations. Regulations Nos 3 and 1408/71 are based on the principle of the uniformity of the legislation to be applied in the various branches of insurance. They do not therefore admit, even in cases where the imputation of a risk is in itself possible, of a solution subjecting a worker to different national systems in respect of the same period. The very wording of Article 13 of Regulation No 3 does not allow of a different interpretation. The difference in wording between the two paragraphs of Article 13 (1) (c) — the first does not use the word ‘employer’ — does not restrict its scope; the wording of the first paragraph in no way excludes employment by different employers. A closer analysis of the two cases dealt with in the second paragraph of Article 13 (1) (c) reveals that the authors of the Regulation intended to elaborate clear and simple rules for contentious situations arising from work in several Member States. Two principles were followed in this respect: on the one hand, of only ever subjecting the worker to the system of a single Member State and, on the other hand, of giving preference to the system of the Member State within the territory of which several of the factors constituting possible application (employment, residence, establishment of the employer) exist. In principle, the rule of the closest and most significant ‘connections’ prevails. When the ‘connections’ with different Member States are virtually equal, the Regulation states, in a desire for simplification and in order to avoid complicated rules of demarcation, that the system of the State in which the worker resides is applicable. Article 14 (1) (c) (i) of Regulation No 1408/71 expresses the same idea as Article 13 (1) (c) of Regulation No 3 in clearer terms, by stating that workers … whose employment is normally carried on within the territory of two or more Member States shall be subject to the legislation of that Member State within whose territory they have their permanent residence, if part of their employment is carried out in that territory or if they are attached to several employers situated within the territory of different Member States or to several undertakings having their registered office within the territory of different Member States. This provision makes it quite clear that the number of employers does not have any bearing.

In conclusion, the Commission suggests the following reply to the question posed:

Article 13 (c) of Regulation No 3 does not imply that the worker works in several Member States only for a single employer.

Grounds of judgment

1. By order dated 21 September 1972, received at the Court Registry on 11 October 1972, the Landessozialgericht for the Baden-Württemberg District referred a question, under Article 177 of the EEC Treaty, relating to the interpretation of Article 13 (1) (c), first paragraph, of Regulation No 3 of 25 September 1958, concerning social security for migrant workers (OJ No 30, p. 561), as amended particularly by Regulation No 24/64 of the Council (OJ No 47, p. 746/64), on whether that provision applies when a wage-earner is in the service of several employers in several Member States.

2. It is seen from the order referring the matter that the question referred to the Court arose in an action pending between an German social security agency, the plaintiff in the main action, and a worker permanently resident in Germany and employed simultaneously in Germany and France who sustained an accident at work. The German social security agency refused to accept a claim arising from this accident, on the ground that Article 13 (1) (c), first paragraph, of Regulation No 3 — which provides that the application of the legislation of the State in which the worker resides in cases where he carries on his employment within the territory of that State and of one or several other Member States — is only applicable subject to the condition that the worker is employed by a single employer, which is not the case here.

3. According to Article 12 of Regulation No 3, the legislation of the Member State within whose territory the worker is employed is, in principle, applicable. Article 13 lays down several exceptions to this principle, the aim of which is to avoid the general rule under Article 12 leading to the application of several legislations when a worker's places of employment are situated in several Member States. To this end, the Regulation has, according to circumstance, chosen particular connecting factors distinct from that of the place of employment. Article 13 (1) (c), first paragraph, envisages more particularly the case of a worker who carries on his employment within the territory of several Member States while at the same time permanently resident within the territory of one of the States in which he is employed. In this case, the legislation applicable is that of the State within whose territory the worker carries on part of his employment and has residence.

4. This provision imposes no supplementary condition and applies without distinction when the worker is attached to one or several employers and wherever the event giving rise to a right of indemnity took place. To make the distinctions suggested by the plaintiff in the main action would be contrary not only to the wording of the Regulation, but also to the system of rules established by articles 12 and 13. Such an interpretation, in the case where a worker is not attached to the same employer, leads to a result which the Regulation wished precisely to avoid, that is to say the application of several legislations. If such a solution could necessarily be conceived in the case of an accident at work occurring within the territorial limits of application of one of the legislations concerned, it would lead to insoluble difficulties in the case of risks which, by their nature, are not capable of being thus localized.

5. The answer must therefore be that Article 13 (1) (c), first paragraph, of Regulation No 3 must be interpreted as meaning that it applies independently of whether the worker is in the service of one or several employers. Further, this interpretation accords with Article 14 (1) (c) of Regulation No 1408/71 of the Council (OJ No L 149, p. 2), which entered into force on 1 October 1972 and which, by Article 94 (3) provides that a benefit shall be payable in pursuance of that Regulation even if it relates to an event before the date of its entry into force.

Costs

6. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the Baden-Württemberg Landessozialgericht, 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 oral observations of the defendant in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 12 and 13; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the question referred to it by the Baden-Württemberg Landessozialgericht (IInd Senate) by order dated 21 September 1972, hereby rules: