JUDGMENT OF 29. 9. 1976 — CASE 17/76 BRACK v INSURANCE OFFICER
In Case 17/76 Reference to the Court under Article 177 of the EEC Treaty by the National Insurance Commissioner for a preliminary ruling in the action pending before him between
THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and M. Sørensen, Judges, Advocate-General: H. Mayras Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts of the case, the judgement making the order for reference, the procedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I — Facts and procedure
The main action concerns an appeal by Mr Brack against a decision of the insurance officer, an independent statutory authority established under the United Kingdom social security legislation, and proceeded with by Mrs Brack after the death of her husband on 21 October 1975.
1. Mr Brack was born on 5 April 1906 and was at all material times a British national resident in Great Britain. He has been insured under the British national insurance scheme since 1948. Until 1957 he paid contributions as an employed person; he subsequently became self-employed and paid contributions as a self-employed person. On 23 September 1974 the claimant went on holiday to France where he fell seriously ill on 30 September and had to receive immediate medical attention. On 25 October 1974 he returned home to England. The defendant in the main action rejected his claim for cash sickness benefit for the period from 30 September to 24 October under Section 49 (1) of the National Insurance Act 1965 — a British Act of Parliament hereinafter referred to as ‘the 1965 Act’ — according to which ‘a person shall be disqualified for receiving any benefit … for any period during which that person … is absent from Great Britain …’. The defendant in the main action considered that, during the abovementioned period, Mr Brack was not a ‘worker’ within the meaning of Regulation No 1408/71 and, therefore, could not benefit under the provisions of Article 22 (1) of that regulation which provide that: ‘A worker who satisfies the conditions of the legislation of the competent State for entitlement to [sickness] benefits … and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State … shall be entitled: … (ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers ..’.
2. A — Having failed in his appeal from this decision to a local tribunal, Mr Brack appealed further to the National Insurance Commissioner. The latter took into consideration in particular the following provisions of Regulation No 1408/71: ‘Article 1 For the purpose of this regulation: (a) worker means: (i) subject to the restrictions set out in Annex V, any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons; (ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this regulation, under a social security scheme for all residents or for the whole working population if such person: can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, or (iii) failing such creiteria, is insured for some other contingency specified in Annex V under a scheme for employed persons, either compulsorily or on an optional continued basis; (iii) Any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this regulation, under a social security scheme of a Member State for employed persons or for all residents or for certain categories of residents if such person has previously been compulsorily insured for the same contingency under a scheme for employed persons of the same Member State.’‘Article 4 1. This regulation shall apply to all legislation concerning the following branches of social security: (a) sickness … benefits …’‘Article 22 [forming part of Chapter 1 — headed “Sickness and Maternity” — of Title III] 1. A worker who satisfies the conditions of the legislation of the competent State for entitlement to benefits … and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State… (c) … shall be entitled: … (ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers …’‘Article 89 Special precedures for implementing the legislations of certain Member States are set out in Annex V.’ ‘Annex V, point I (headed “United Kingdom”), paragraph 1 All persons required to pay contributions as employed workers shall be regarded as workers for the purposes of Article 1 (a) (ii) of the regulation.’ (Point I was inserted into Annex V by virtue of the combined provisions of Article 29 of the Act concerning the Conditions of Accession and the Adjustments to the Treaties and of paragraph 1 Chapter IX of Annex I to that Act.) By an interim decision adopted on 12 February 1976 the National Insurance Commissioner decided to submit the following questions to the Court: ‘1. Whether the provisions of paragraph 1 of Point I of Annex V to Regulation (EEC) No 1408/71 in any way limit or restrict or merely supplement the definition of the term “worker” in Article 1 (a) of the regulation or any branch of that definition? 2. Whether a social security scheme for employed persons and others is for the purposes of subparagraph (i) of the above definition of “worker” a social security scheme for employed persons, so that, consistently with Articles 48 to 51 of the EEC Treaty, any person or any self-employed person (not being an employed person) insured under such scheme against one or more of the contingencies covered by the scheme is, either generally or in relation to the contingencies so insured against, a “worker” in terms of that subparagraph? 3. Whether for the purposes of subparagraph (ii) of the above definition of “worker”, a person notwithstanding that he is self-employed at the relevant time can be identified as an employed person by virtue of the manner in which a social security scheme is administered or financed, either generally or in relation to any contingency for which he is insured under this scheme, by reason of the fact that his title to benefit on the happening of such a contingency is constituted to a material extent by his having paid, or been credited with, contributions as an employed person? 4. Whether, for the purposes of subparagraph (iii) of the above definition of “worker” a person is to be regarded as voluntarily insured for any contingency under a scheme, so as to be a worker for the purpose of that subparagraph either generally or in relation to such contingency, either (i) because that person though ordinarily compulsorily insured has at the material time temporarily an option whether to pay contributions or not, or (ii) because that person is at the material time required to pay contributions only because he has exercised an election not to retire; and in either case notwithstanding that the scheme under which he was previously compulsorily insured as an employed person was a scheme for employed persons and others?’ B — The National Insurance Commissioner's reference contains the following explanations: (a) As regards British legislation on social security This legislation provides for a single system of national insurance, first governed by the National Insurance Act 1946 and subsequently by the 1965 Act, including in each case various regulations having effect thereunder. After the events giving rise to the claim occurred, the 1975 Act was replaced by the Social Security Act 1975. The 1965 Act and its implementing regulations included the following provisions and brought about the following principal results: 1. The persons subject to the scheme established by that Act were divided into three classes, namely employed persons, self-employed persons and non-employed persons. (Section 1 (2)). Broadly, it was compulsory for most of the population between the age of 16 and normal retirement age — fixed at 65 for men under Section 114 (1) — to pay contributions by way of insurance in one of these classes which entitled them to certain contributory benefits appropriate to the class in question. Conversely, a person who was under no obligation to pay contributions was in general not permitted to do so, subject to certain exceptions. By exercising a power conferred on him by the 1965 Act, the Minister responsible modified the classification resulting from the sub-division referred to above, with the result that certain categories of persons were classified as employed persons notwithstanding that there existed no contract of employment, while others, for whom a contract of employment existed, were classified as self-employed persons. 2. An important distinction between the three classes lay in the cash benefits for which the various categories of contribution qualified them. Referring each time to ‘contributions of the appropriate class’, Schedule 2 to the 1965 Act established the minimum amount of the contributions which the person concerned had to pay or had to have credited to him for entitlement to the benefits payable by way of the various risks referred to in that Schedule, including the risk of sickness. Section 18 of the 1965 Act defined the term ‘contributions of the appropriate class’ by providing that, as regards unemployment benefit, only employed persons' contributions were ‘contributions of the appropriate class’ (and gave rise to a right to unemployment benefit) whilst in relation to all other contributory benefits either employed persons' contributions or self-employed persons' contributions were contributions of the appropriate class. Finally, under the same provision, in relation to retirement pension, any contributions were regarded as ‘contributions of the appropriate class’. 3. A person over pensionable age who had not retired from employment was not required to satisfy the special contribution conditions provided for in relation to unemployment and sickness benefit in order to be able to make a claim but was entitled to unemployment benefit or sickness benefit at the weekly rate at which a retirement pension would have been payable if he had retired (section 19 (3)). Accordingly, in effect, the contribution conditions applicable to these benefits were, in the case of such a person, those applicable to retirement pensions. 4. The contribution conditions appropriate to retirement pension in force at the time of the present claim were, by virtue of section 30 (1) of the 1965 Act and paragraph 4 (1) of Schedule 2 thereto as follows: that not less than 156 weekly contributions of any class had been paid (not merely credited) between the date of entry into insurance and the date of attaining normal pensionable age; and that the yearly average of contributions (paid or credited) as at the date of attaining normal pensionable age was not less than 50. 5. Regulation 7 of the National Insurance (Widow's Benefit and Retirement Pensions) Regulations 1972, which was adopted under the 1965 Act, provided for entitlement to pension at a reduced rate where the first of the abovementioned conditions was satisfied, but where the yearly average of weekly contributions, though less than 50, was not less than 13. 6. These facts and other provisions in force at the time of the present claim show that the rate of retirement pension, and therefore unemployment and sickness benefit for those over pensionable age, was thus determined once and for all by reference to the contribution record as it stood as at attaining normal pensionable age. More particularly, any subsequent increase in pension, which was possible in certain cases, did not affect the rate of sickness benefit. 7. Provided that the person concerned had actually retired, he was entitled to retirement pension from the date on which he had attained normal pensionable age (section 30 of the 1965 Act). As from that date liability to pay contributions ceased (section 3 and Part I of Schedule 1). Any person who exercised his right not to retire at that date could not claim a pension but continued to be liable to pay contributions until he actually retired or until the expiration of five years from pensionable age, when he was deemed in any case to have retired (cf., section 30 (4)). (b) The position of Mr Brack with regard to this legislation 1. At the material time Mr Brack was between the ages of 65 and 70 and had not retired. Therefore, the rate at which sickness benefit was payable depended on the rate at which the retirement pension would have been payable if he had retired (cf., Point 3 above). 2. This latter rate in turn depended on his having satisfied to the extent necessary the contribution conditions referred to under Point 4. In this respect the following factors must be taken into account: (aa) Mr Brack satisfied the first of those conditions, once he actually paid 156 contributions, either with employed persons' contributions exclusively or with self-employed persons contributions exclusively or partly in one way and partly in the other. (bb) The claimant could satisfy the second of those conditions only by combining his employed persons' contributions and his self-employed persons' contributions. (cc) Nevertheless, either his employed persons' contributions or his self-employed persons' contributions by themselves would have been sufficient to entitle him to a retirement pension (or, at the time of the claim, to sickness benefit) at a reduced rate. (dd) Mr Brack paid, or was credited with, full contributions in the contribution year in which the present claim arose, at least down to the day preceding the first day of the claim. (c) Matters raised in argument 1. The first question asks whether the relevant provision of Annex V to Regulation No 1408/71 — which had the effect of including in the term ‘worker’ any person classified by the Secretary of State as an employed person, even if not in fact an employed person — restricts or limits the scope of the term as defined in Article 1 of the regulation. 2. The second question concerns the fact that the 1965 Act sets up a single social security scheme for employed, self-employed and non-employed persons. It is thereforce necessary to decide whether, as a self-employed person at the material time, Mr Brack falls within the definition set out in Article 1 (a) (i) of Regulation No 1408/71, either for all purposes of the regulation or in relation to the contingencies for which he was insured. 3. As regards the third question it must be remembered that the National Insurance Commissioner has already held that a claimant in another case was a worker for the purposes of Article 1 (a) (ii) of Regulation No 1408/71. In that case, however, the facts were stronger in favour of the claimant in that at the material time he had so recently been an employed person that according to British legislation and although he was currently paying the contributions of a self-employed person, he was still, when entitled to be credited with contributions, entitled to those of an employed person. 4. As regards the fourth question, it must be remembered, first, that the contributions which Mr Brack in theory paid while he was abroad were optional and, secondly, that he could have retired at a date before the material time, in which event his liability to pay contributions would have ended.
3. The decision referring the case to the Court was received at the Registry on 16 February 1976. 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 parties to the main action, the British and Danish Governments and the Commission. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral precedure without holding any preliminary inquiry.
II — Written observations submitted to the Court
1. Observations submitted by the applicant in the main action
A — The first question
Article 1 (a) of Regulation No 1408/71 contains two references to Annex V:
Subparagraph (i) alone uses the phrase ‘subject to the restrictions set out in Annex V”. This Annex must therefore be understood — subject to certain exceptions which are not relevant in this case — as only placing restrictions on the definition appearing in the said subparagraph (i), to the exclusion of the definitions given in subparagraphs (ii) and (iii).
Subparagraph (ii), second indent, refers to “some other contingency specified in Annex V”. This phrase completes the expression “contingencies covered by the branches of social security dealt with in this regulation”, employed at the beginning of that subparagraph, but does not place any limitation on the definition given therein.
The first paragraph of Annex V, Point I, attaches no restriction nor does it specify any contingency. It cannot therefore restrict the definitions contained in Article 1 (a) of the regulation. Its intention is to clarify and confirm that the persons to which it refers “can be identified as an employed person”, by virtue of the “manner in which” the British scheme “is administered or financed” in accordance with the first indent to subparagraph (ii).
A negative reply must therefore be given to the first and an affirmative reply to the second alternative in this question.
B — General submissions on the second, third and fourth questions
As is shown by Article 48 (3) (b) of the Treaty, the term “worker” also includes persons who are not at the material time employed. The Court so held in Case 75/63Hoekstra(néeUnger) v Bestuur der Bedrijfsvereninging voor Detailhandel en Ambachten ([1964] ECR 183 at pages 184-186).
Article 52 of the Treaty secures “the right to take up and pursue activities as self-employed persons”, and Article 54 (3) (d) enjoins the Community to ensure that “workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as self-employed persons”.
Numerous judgments of the Court which have interpreted the phrase “travailleurs salaries ou assimilés” — appearing in Article 4 of Regulation No 3 of the Council concerning social security for migrant workers (JO No 30 of 16. 12. 1958, p. 561), which preceded Regulation No 1408/71 — have defined it as including any person who is treated by the social security legislation of the relevant Member State as if he were an employee.
These factors, as well as the preamble to Regulation No 1408/71, lead to the conclusion that the principle of freedom of movement for workers is not confined to those who are or were employed, with the result that the term worker, as used in Article 51 in particular, refers to any person capable of taking up employment whether he was formerly employed, unemployed or self-employed.
C — The second question
This question must be answered in the affirmative:
The fourth recital in the preamble to Regulation No 1408/71 recognizes that all nationals of Member States, thereby including self-employed workers, may be insured under social security schemes for employed persons. Moreover, the phrase insured … for one or more of the contingencies appearing in the abovementioned subparagraph (i) in relation to compulsory insurance suggests a different treatment for different classes of insured persons, which would be difficult to justify if the said subparagraph only referred to employed persons.
The first paragraph of Annex V, Point A, which deals with Belgium and specifies that subparagraph (i) shall not apply to certain self-employed workers, shows, as . result of the very restriction which it contains, that this category of workers is in principle covered by the said subparagraph. No such restriction appears in Point I of the Annex concerning the United Kingdom.
If it were necessary to accept that subparagraph (i) includes neither unemployed nor self-employed persons, it would follow that no provision contained in Article I (a) of the regulation would cover the position of a national of the United Kingdom (or of any other Member State which had only ever operated a single social security scheme for employed persons and others) who was an employed person insured only on an optional continued basis or voluntarily. Such a situation may arise under British legislation in respect of certain groups of persons. The result indicated would constitute a formidable obstacle to the free movement of workers.
D — The third question
This question too must be answered in the affirmative:
The scheme comprised in the 1965 Act was financed by contributions and exchequer supplements. An employed person could be identified by the contributions he paid.
There is nothing in subparagraph (ii) which requires this identification to be limited to the facts prevailing at the material time. This is demonstrated by the example of a national of the United Kingdom who, having been employed all his life and having paid employed person's contributions over a long period, goes to another Member State to look for a new job. As long as he stays in that State and is unemployed he would be unable to pay an employed person's contribution. However, it would be impossible to claim that such a person could not be identified as an employed person by virtue of the contributions he had made as such in the past.
The definitions in Article 1 (r) and (s) of Regulation No 1408/71 recognize that periods of employment may include periods of non-employment and self-employment if the national legislation so regards them. As the regulations adopted under the 1965 Act are intended to preserve accrued benefits, a period of self-employment which constitutes part of a person's entitlement to benefit cannot prevent identification as an employed person.
E — The fourth question
An affirmative answer must be given to this question, since a person must be regarded as voluntarily insured where, although ordinarily compulsorily insured, he has at the material time temporarily an option whether to pay contributions or not, notwithstanding that he was previously insured under a scheme for employed persons and others.
Article 15 (2) of the regulation recognizes the existence of compulsory, voluntary or optional continued insurance schemes, whilst subparagraph (iii) in question here refers to the person “who is voluntarily insured … under a social security scheme …”. This contrast shows that the voluntary element in this definition must consist of a free choice available to the person under a social security scheme of any nature rather than that the social security scheme should be entirely voluntary for all.
On the other hand, the voluntary nature of Mr Brack's insurance does not arise out of the fact that he was able to retire.
2. Observations of the Insurance Officer, the defendant in the main action
The Insurance Officer explains, first, that where there is an appeal against a decision taken by him, his duty is to assist the tribunal or the commissioner to whom appeal is made to arrive at a correct determination, without necessarily seeking to uphold the decision appealed against.
The Insurance Officer deals with certain aspects only of the questions referred to the Court, which he regards as of general interest for the solution of disputes which he might be called upon to settle in the light of Community law.
In any event any answers which the Court may give to the questions referred to it should confirm:
a) that if a person is a worker within the definition in Article 1 (a) of Regulation No 1408/71, he is such a worker for the purposes of the regulation generally;
b) that, in determining, on the happening of a contingency as a result of which benefit is claimed, whether a person is a worker within the definition in Article 1, it is not necessary to consider the nature or extent of the contributions by virtue of which entitlement to the benefit claimed, or to some other benefit, has been acquired.
As to (a)
This argument results from the very wording of the initial provisions of Article 1. Furthermore, it finds its basis in the case-law of the Court, according to which the concept of “wage-eamers and assimilated workers” used by the former Regulation No 3 has a Community meaning; this view must also be accepted as regards the concept of worker in Regulation No 1408/71.
To hold that a person may be regarded as a worker only in relation to a particular contingency for which he is covered under a particular national law is inconsistent with this view.
As to (b)
In support of his argument the Insurance Officer refers to certain points under the legislation of the United Kingdom. He points out, in particular, that, according to this legislation, a person who is classified successively as an employed person and a self-employed person or vice versa, would, if certain contingencies happened within a specified period, be entitled to benefit by virtue of contributions paid at a time when his status was different from that at the time when the relevant contingency happened.
Where a person has acquired a right to benefit by virtue of a contribution record constituted in part by contributions as an employed person and in part by other contributions, to have regard to the contribution record in the manner envisaged in the third question, for the purposes of determining whether such person is to be identified as a worker, necessitates determining what proportion of the contributions constitutes a material extent (cf. the wording of the question). It may be said to be such if the contribution record includes sufficient contributions as an employed person to establish title to some benefit. However, if title to some benefit is also established by virtue of the other contributions alone, it is arguable that the contributions as an employed person were not material, or only material as to the rate of benefit payable. Finally, there are no firm principles by which to establish, in each particular case, whether or not the number of contributions paid is “material”.
3. Observations of the British Government
A — General observations
(a) British legislation
The British Government describes in great detail the development and state of British legislation on social security matters, because it considers that knowledge of these factors is indispensable to an understanding of the difficulties which gave rise to the reference and so that the Court may frame its answers in such a way as to enable the United Kingdom tribunals to see more clearly how the Community law is to be applied having regard to legislation of this type. With this in mind the British Government states essentially as follows:
The British system, which began by covering only narrowly defined classes of workers, was later extended to other classes who were considered by the legislature to have the same needs and be subject to the same risks. The exact composition of the classes of person covered has varied at different times and has never been such as to permit the drawing of a clear distinction between those who may be regarded as wage or salary-earning workers and those of other classes.
The contribution system in force at the time relevant to this case did not (except as to the rate of contribution payable and the liability of employers) distinguish between contributors according to class; at present, an attempt is being made to eleminate all differences of treatment between employed and self-employed persons.
In principle, contributors of all classes are eligible for the same benefits.
No distinction is made between different classes of contributors in the organization and administration of the scheme.
(b) The case-law of the Court relevant to the application of Regulation No 3
Among the various factors emerging from this case-law the British Government points out in particular the following aspects:
The concept of “worker” within the meaning of Articles 48 to 51 of the Treaty has Community scope and thus the interpretation of Regulation No 3 could not depend on definitions given to that concept by the law of the Member States (cf, in this respect, in particular, the Hoekstra nee Unger judgment, according to which the regulation applied to all who, under whatever description, are covered by the different national systems of social security: in that instance, the person concerned previously possessed the status of “worker” and was capable of re-acquiring it.
In later cases the Court has held that the term “wage-earners or assimilated workers”, within the meaning of Article 4 of Regulation No 3 is based “on a wide conception of the persons to whom it applies” and “follows a general tendency of the social law of Member States to extend the benefits of social security in favour of new categories of persons by reason of identical risks”, although “the exact measure of this assimilation can only be determined in terms of the national legislation” and “Such an assimilation takes place on every occasion on which, as a result of the effect of national legislation, the provisions of a general scheme of social security are extended to a category of persons other than the wage-earners referred to by Regulation No 3, whatever may be the forms or methods of application employed by the national legislature” (Judgment of 19 December 1968 in Case 19/68, De Cicco v Landesversicherungsanstalt Schwaben [1968] ECR 480 and the Judgment of 27 October 1971, Janssen v Mutualityés Chrétiennes, [1971] ECR 859 to the same effect).
In general terms, the Court founded its rulings on the proposition that, when adopting regulations on the basis of Article 51 of the Treaty, the Council is bound in order not to conflict with that article, to eliminate all obstacles to freedom of movement for workers.
(c) Relevance of this case-law to the interpretation of Regulation No 1408/71
The principles set out above also govern the interpretation of Regulation No 1408/71. The fact that the Court adopted the same basic concept is shown by its judgment of 21 October 1975 (Case 24/75, Petroni v ONPTS [1975] ECR 1149) according to which a provision in a regulation which might cause workers to lose advantages in the field of social security guaranteed to them by the laws of a single Member State was invalid. In interpreting any provision of Regulation No 1408/71 it must be assumed that the Council has not disregarded the duty placed on it by Article 51, unless it is impossible to make an interpretation which is in accordance with that article. It is clear that this is true from extracts from the minutes of meetings of the Council which show that, in framing the provisions of Regulation No 1408/71, the Council sought to give effect to the interpretation placed on Article 51 by the Court. In the words of the Practical Handbook of Social Security, published by the Commission (page 5), ‘The provisions of the new regulations have taken in and given general application to the conclusions of the Court of Justice … on cases brought under Regulation No 3’.
Article 2 of the regulation, which defines the persons whom the regulation covers, is in no way more restricted than the meaning which the Court has attributed to the concept ‘travailleurs salaries ou assimiles’, within the meaning of Regulation No 3. The only question which arises is whether any provision in the regulation other than Article 2 gives this term a more restricted meaning. In this respect the British Government considers certain articles and recitals to the regulation;
Article 1 (a)
In theory, this provision may be interpreted in three different ways:
1) Every person who is a worker within the meaning of Article 51 of the Treaty, as already defined by the Court, satisfies the conditions set out in one or more of subparagraphs (i) to (iii).
2) The definition contained in the provision is not exclusive, but merely sets out three particularly important examples.
3) This definition excludes certain groups of persons who had, on the basis of Regulation No 3, been accepted by the Court as being covered by the regulation.
For the reasons set out above, the third of these possibilities ought not to be considered if the regulation can be interpreted consistently with either the first and second possibility, or with a combination of them, which is in fact the case.
As to the first possibility, it is to be noted that subparagraphs (i) and (iii) may overlap to some extent. The question which arises is what is meant by the terms ‘social security scheme for employed persons’ (subparagraph (i)) and ‘scheme for employed persons’ (subparagraph (iii)). It is consistent with the wording of these provisions that the terms quoted cover schemes which apply both to employed persons and to others treated like them (the ‘assimilated workers’ within the meaning of Regulation No 3), and the case-law of the Court even requires such an interpretation. In fact, as the British Government seeks to show in detail, to accept the contrary interpretation would mean that a person who is in the position referred to by the Janssen judgment — which accepted that Regulation No 3 applied for the benefit of such persons — is not covered by any of the possibilities set out in subparagraphs (i) and (iii). As such a result is unacceptable, the first of the three possibilities is shown to be the correct one.
However, the second possibility — that the definition in Article 1 (a) is not exclusive — is also correct. Moreover, if the interpretation suggested above for the expressions ‘scheme for employed’ persons' etc. is not accepted, that possibility must of necessity be adopted. It applies, however, even if that interpretation is adopted. In all the Member States social security schemes are tending to include new categories of persons, which, so far as they may fall within the principles deduced from Articles 48 to 51 of the Treaty, must be covered by the regulation.
The Recitals
The first recital shows that a revision of the old regulation was needed ‘in the light of the practical experience of its implementation since 1959’, which undoubtedly included the effects of the decisions of the Court.
The second recital shows that the intention of the Council was ‘to develop’ and ‘improve’ the then existing provisions for coordination. Any reduction in the scope of the regulation below the requirements of the Treaty as declared by the Court could not be regarded as either development or improvement.
The fourth recital, which alone refers to ‘employed persons’, only uses this phrase in reference to the concept of ‘social security schemes for such workers’ and without specifying that the schemes must be for them alone.
Article 34
This provision treats as ‘workers’ certain persons who pursued an occupational activity. The use of this expression of general application shows that the Council intended to give the term ‘worker’ a wider field of application than merely employed persons.
Annex V, Point A (1)
This provision provides that Article 1 (a) (i) shall not apply, inter alia, to ‘self-employed persons … receiving medical treatment under the [Belgian] Law of 9 August 1963 on the establishment and organization of a compulsory sickness and invalidity insurance scheme’. That law provided that such scheme might be extended to self-employed persons by Royal Decree, and it has actually been so extended. If the extension had made it no longer a ‘scheme for employed persons’ within the meaning of the said subparagraph, the provision under consideration would have been without object. The provision — which specifies that it applies only to those who do not receive ‘the same protection as employed persons’ — therefore confirms the interpretation of subparagraph (1) set out above.
(d) Conclusion
To sum up, Regulation No 1408/71 includes all those to whom the legislation of a Member State has extended the provisions of a general scheme of social security, to the extent to which they are considered to be subject to the same risks and contingencies as the generality of workers and are accorded the same protection against those risks and contingencies by the same scheme. It is for the national courts, where necessary, to decide whether such an extension is made by the scheme in question. It is, however, beyond doubt that such an extension is made by the British system.
B — The first question
The provision in question in no way restricts the definition of the term ‘worker’ but serves merely to make clear that the persons mentioned therein fall specifically within the area of application of Article 1 (a) (ii).
On the other hand, it does not mean that only the persons mentioned fall within the said subparagraph. If the contrary interpretation were adopted, without its being accepted at the same time that the persons who are thereby excluded from the application of subparagraph (ii) and not falling within subparagraph (i) are nevertheless workers within the meaning of Article 1, then Regulation No 1408/71 would not fulfil the duty imposed on the Council by Article 51 of the Treaty.
C — The second question
This question must be answered in the affirmative and the answer must be general and not merely related to a particular contingency. The Court has held on many occasions that the nature of the contingency giving rise to the application of Regulation No 3 cannot relate to the status of the person concerned as a worker (cf., for example, Judgment of 11 March 1965 in Case 31/64, ‘De Sociale Voorzorg’ Mutual Insurance Fund v Bertholet [1965) ECR 81). Furthermore, a fragmented interpretation of the term ‘worker’ would risk destroying the consistency of the Treaty.
D — The third question
A negative answer must be given to this question.
Article 1 (a) (ii) adopts as a criterion the manner of organization of the scheme and not the acts of the person concerned. Therefore, the fact that certain contributions have been paid by a person or credited as paid cannot alone confer on such person the status of worker either generally or in relation to the contingency in question. It is for the national law to say whether, and under what conditions, such payment or crediting of contributions may be relied on as evidence of the status of the person concerned.
Moreover, to accept the contrary argument would result in certain unacceptable consequences:
A person who went from one Member State to another for two weeks might be a worker in one week but not in the other if the contribution period relevant to his title to benefit in the second week were a later period than the one relevant to his title in the first week, (ii) A person might be a worker for the purpose of only certain benefits.
Moreover, in such a case one would not know whether or not he should be treated as a worker for the purpose of the non-contributory benefits which the regulation equally applies (cf., Judgment of 7 May 1969 in Case 28/68, (Caisse Régionale de Sécurité Sociale du Nord de la France v Torrekens, [1969] ECR 125.
In those cases in which, as under the British system, contributions of different classes may be combined for the purposes of title to a single benefit, the application of the criterion of ‘material extent’, suggested by the national tribunal, would create an element of uncertainty.
However, the actual or potential entitlement to benefit by virtue of insurance periods or contribution periods previously completed may be material for another reason than that envisaged in the third question. A person is ‘insured’ for the purposes of the regulation so long as his insurance against a risk continues. It follows that if, by virtue of periods completed as a ‘worker’ a person is still protected by a social security scheme against certain risks which have materialized or which may materialize, such person must be considered as being still a worker. The question is simply whether those periods are taken into account for the purpose of the acquisition or retention of the right to, or the calculation of the amount of, the benefit in question.
This question therefore concerns the protection of acquired rights or rights in formation, which is the object of Article 51 of the Treaty and has been affirmed by the Court, for example, in the judgments in Hoekstra(néeUnger) and Janssen. As these judgments have emphasized, Article 4 of Regulation No 3 — like Article 2 of Regulation No 1408/71 — also refers to workers who ‘have been’ subject to the legislation of one or more Member States.
E — The fourth question
A person who has been compulsorily insured as a worker under a scheme which may or may not be limited to employed persons, and who maintains his insurance by voluntary contributions under such a scheme established by the same Member State, is defined as being a ‘worker’ by the express words of Article 1 (a) (iii) of Regulation No 1408/71.
On the other hand, this wording shows that a person who is compulsorily insured cannot come within the field of application of the said subparagraph, even where the obligation to contribute arises solely from the fact that such person has elected not to retire. The decision whether or not to retire cannot be equated with the decision whether or not to be insured.
4. Observations submitted by the Danish Government
The Danish Government restricts itself to making general observations and to giving its opinion on the first question.
It is clear from the title of Regulation No 1408/71 and from Articles 1 (a) 2 (1) that the regulation applies to employed persons.
Regulation No 3 contained no definition of the concept ‘worker’ corresponding to that in Article 1 of Regulation No 1408/71. This is explained by the fact that the six original Member States had special social security schemes for employed workers, so that the definition of this concept gave rise to no difficulty. However, since the adoption of Regulation No 3 the national legislation of the Member States has undergone considerable development, characterized by ever-increasing endeavours to expand social security systems to embrace an increasingly large portion of the population.
As regards the legislation of the new Member States in particular, it differs in important branches from that of the original Member States, in that it covers either all persons resident in the territory of the State concerned, or the entire national population irrespective of whether the indiviudals concerned are in employment.
The present case reflects the difficulties which are created by the interpretation of Article 1 (a) of Regulation No 1408/71. As regards Denmark, for example, these problems result from the fact that the legislation on sickness insurance covers all persons having a place of residence in Denmark, whilst legislation on pensions applies to all nationals having a place of residence in Denmark.
The regulation also applies to schemes of this nature but restricts its area of application to workers, members of their families and persons who have been workers. This restriction follows from Article 2 but also appears in the provisions of Article 1 (a) (ii). It is the inevitable consequence of the fact that the regulation was adopted in pursuance of Article 51 of the EEC Treaty.
In these circumstances, it cannot be accepted that the regulation applies to self-employed persons who have formerly been workers. If it also covers persons who have previously been employed workers, this is solely in order to ensure that the persons concerned retain the right to benefits which they have acquired as a result of their employment as workers. This applies in particular to old-age benefits.
Moreover, the contrary argument would bring about an unreasonable extension of the area of application of the regulation in that most nationals of the Member States have been workers at one time or another.
In addition, it would bring about discrimination between self-employed workers who temporarily reside in another Member State, depending on whether they come from a Member State with general social security schemes or a Member State which draws a distinction in its social security schemes between employed and self-employed persons.
Point I (1) of Annex V to Regulation No 1408/71 clarifies the definition of the concept of ‘worker’ contained in Article 1 (a) of the regulation, by indicating clearly the persons who, for the purposes of the application of the legislation of the United Kingdom, must be considered as workers within the meaning of Article 1 (a) (ii).
5. Observations of the Commission
A — The admissibility of the request for interpretation
The National Insurance Commissioner constitutes a court or tribunal within the meaning of Article 177 of the Treaty, that is, it is the final tribunal of appeal called upon to deal with social security matters, subject to a certain supervisory jurisdiction exercised by the High Court. This request is therefore admissible.
B — General considerations
Although Article 51 of the Treaty makes the Council responsible for adopting such measures as are necessary to provide freedom of movement for workers, the Chapter of the Treaty concerning the right of establishment (Article 52 et seq.) contains no equivalent provision.
The Court has not yet ruled on the questions concerning the interpretation of Regulation No 1408/71 which are involved in this instance. However, certain elements in its case-law concerning the interpretation of the phrase ‘wage-earners or assimilated workers’ (Article 4 of Regulation No 3) are, or may be, of interest for the solution of the problem:
The Court has repeatedly held that the provisions of Regulation No 3 may also apply to workers who have only been subject to the legislation of a single Member State and who have gone to another Member State for reasons wholly unconnected with their work (cf., for example, the Hoekstra(néeUnger) judgment), that is, to persons who cannot be regarded as ‘migrant’ workers stricto sensu. That this interpretation remains valid as regards Regulation No 1408/71 is shown in particular by the fact that, first, this regulation is to ‘apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States’ (Article 2 (1)) and, secondly, that it defines the term ‘stay’ — which appears in particular in Article 22 (1) (a) — as meaning ‘temporary residence’ (Article 1 (i)).
According to the established case-law of the Court, the phrase ‘wage-earners or assimilated workers’ has a Community meaning and must be given a wide interpretation (cf., Judgments in Hoekstra(néeUnger), De Cicco and Janssen).
In these circumstances, the sole question to be decided in this case is whether — despite the fact that at the time of the claim he was classified as a self-employed worker for the purposes of the British social security scheme — Mr Brack may be considered as a ‘worker’ under Article 1 of Regulation No 1408/71. If this is so, the fact that he fell ill in another Member State will not deprive him of the benefits to which he is entitled under Article 22 of the Regulation.
While the authors of Regulation No 3 were content to limit the persons to whom the regulation applied by using, without defining it, the term ‘wage-earners or assimilated workers’, the authors of Regulation No 1408/71 used the term ‘worker’ for this purpose and took care to define it in detail (Article 1 (a)). In doing so they took into account the case-law of the Court, as is shown by the fourth recital, which states that ‘the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the regulation applies to all nationals of Member States insured under social security schemes for employed persons’.
Article 1 (a) of Regulation No 1408/71 may be analysed as follows:
Subparagraphs (i) and (ii) refer to two basic types of social security scheme, the former to be limited to ‘employed persons’ and the latter extending to ‘all residents’ or ‘the whole working population’. Subparagraph (iii) appears to cover those persons who find themselves in the situation referred to in the Hoekstra(néeUnger) judgment, that is, those ‘who, originally compulsorily affiliated to a social security system as “workers”, have subsequently, as such and in consideration of a possible resumption of their activity as workers, been admitted as beneficiaries of a voluntary insurance scheme under national law governed by principles analogous to those of the compulsory insurance’.
As regards subparagraph (i) in particular, the phrase ‘insured … on an optional continued basis’ appearing therein refers to those systems which provide for a salary ceiling above which insurance on a continuing basis is optional.
As regards subparagraph (ii) it must be remembered that this subparagraph only refers to those persons who are insured for the contingencies ‘covered by the branches of social security dealt with in this regulation’, a condition which does not appear in subparagraph (i).
Although subparagraph (ii) refers to schemes which also cover persons other than ‘employed persons’, it is limited to insured persons who may be regarded as falling within this category on one of the grounds set out in the two indents to the subparagraph in question. The reference to Annex V contained in the second indent may play a role of, inter alia, for the United Kingdom (cf., Point I (1) of the Annex). However, that paragraph refers to both indents without distinction.
In order to discover whether or not the British system established by the 1965 Act falls within the terms of subparagraph (ii), it must be considered in the light of certain phrases used in that subparagraph:
‘Scheme for all residents’
The British scheme excepted students and persons with low incomes from liability to pay contributions. Secondly, it allowed persons who were not resident in Great Britain to continue their insurance. However, for a person to have qualified for benefits, particularly long-term benefits, he must have been a resident.
Scheme … for the whole working population
The British scheme also made provision for the insurance of the non-employed.
If such person ‘can be identified as an employed person by virtue of the manner in which such scheme is administered or financed’
Under the British scheme a person could be identified as an employed person by having regard, in particular, to the type of contribution and the rate at which it was paid.
C — The first question
No provision expressly explains the legal relationship between Regulation No 1408/71 and its annexes. In this respect, a distinction must be made:
Article 1 (a) (i) refers to Annex V by using the words subject to the restrictions set out in Annex V. In the light of such clear wording, it must be accepted that an express reference in Annex V to subparagraph (i) conditions the interpretation of that subparagraph.
On the other hand, where the references one to another are less precise a reference in Annex V to the text of the regulation possesses only indicative value. This applies to the first paragraph of Point I of the Annex, which may only be used as a means of assistance (albeit persuasive) in the interpretation of the term ‘worker’ as defined in Article 1 of the regulation.
D — The second question
The reply to this question is in the negative, as is already shown by the fact that the schemes which apply both to employed persons and to others are expressly covered by subparagraph (ii). Secondly, to make an affirmative reply would circumvent the principle expressed in the two indents to subparagraph (ii) which is intended to restrict general schemes to employed persons. Finally, although the Court has attributed a wide field of application to Regulation No 3, it has done so only in relation to persons who, although not strictly speaking, employed persons, were insured under a scheme applying to employed persons, or linked to such a scheme.
E — The fourth question
It seems desirable to deal with this question before the third question.
The reply to the fourth question must also be in the negative for the following reasons:
In cases such as the present, there is no immediate relationship between, on the one hand, the claimant's previous compulsory insurance as an employed person and, on the other hand, either of the factors which might serve to classify him as a ‘voluntarily insured’ person. That such a relationship is necessary is shown by the judgment in the Hoekstra(née Unger) case where the person in question was immediately previous to her period of voluntary insurance compulsorily insured under a scheme for employed persons.
Again, a person cannot be considered ‘voluntarily” insured under a scheme which is based on a system of compulsory insurance simply because the scheme provides that, in certain very limited circumstances (namely, absence abroad), a person has an option to pay contributions. It is not known whether Mr Brack availed himself of this option. At all events, he would have been compulsorily insured before and after his brief stay in France.
In addition, the fact that he decided to continue working after reaching the age of retirement cannot confer on him the status of a “person who is voluntarily insured”.
Finally, once it is accepted that the United Kingdom social security scheme is not “a scheme for employed persons” within the meaning of subparagraph (i), it cannot be so considered for the purposes of subparagraph (iii).
F — The third question
The Commission considers that it is only in the context of the third question that an affirmative reply is arguable. However, taking the question as a whole, the Commission considers that such a reply would conflict with persuasive arguments to the contrary. It wonders, however, whether these objections may not be overcome in certain cases by applying a broad interpretation. In particular, it states that:
The scheme established by the 1965 Act satisfies the conditions laid down in the first indent to subparagraph (ii). (See above, general considerations).
However, it would be difficult to take advantage of this scheme so as to bring persons other than employed persons insured thereunder within the scope of the provisions of Regulation 1408/71:
The Treaty establishes a clear division between employed workers and the self-employed.
As the Advocate-General emphasized in the Hoekstra(néeUnger) case, (Judgment of 19 March 1964, [1964] ECR 192) in relation to Regulation No 3 ‘the words “wage-earners or assimilated workers” exclude the rare cases of social security legislation which apply to the whole of the population; at least these laws are excluded in so far as they automatically concern the self-employed sectors of the population’.
Subparagraph (ii) attempts to pick out those persons who are ‘workers’ from among the persons subject to a general social insurance scheme.
On the other hand, one of the principal aims in the field of social security is to secure equality of treatment for all those covered by Community legislation. In this respect, it would be contrary to the spirit of the Treaty to interpret Regulation No 1408/71 in a restrictive manner. Furthermore, Article 1 of the regulation reflects the rather extensive approach of the Court and appears to indicate that it covers broadly the same category of person as that covered by Regulation No 3. The question thus arises whether a person who is at present insured under a general scheme otherwise than as an employed worker, but who has previously been so classified, may be considered, if certain conditions are fulfilled, as falling within the scope of subparagraph (ii).
In this instance, the considerations set out above show that an affirmative reply to this question cannot be excluded on the ground that, while he was in France, Mr Brack was not compulsorily insured. On the other hand, such a reply cannot be deduced from the fact that the claimant's title to the benefit in question‘is constituted to a material extent by his having paid, or been credited with, contributions as an employed person’ (see the wording of this question). Such an argument would lead to arbitrary results, since:
If Mr Brack had been under 65 at the material time, the periods completed by him as an employed person would not have been taken into account under British legislation for the purpose of the benefit in question;
The argument which has just been dismissed thus amounts to stating that the mere fact that the claimant has not retired at the age of 65 gives him the status of an employed person.
Another reason which suggests a negative reply to the present question lies in the fact that Mr Brack was classified as an employed person for 9 years and as self-employed for the entire subsequent period of 17 years. To give an affirmative reply to the question would thus amount to accepting that it is sufficient to have been an employed person for a short period in order to keep that status for ever.
Notwithstanding these observations, it is perhaps possible to interpret subparagraph (ii) extensively so that the definition contained therein also covers certain — although not all — groups of persons who have formerly been classified as employed persons. A formula enabling this extension to be made would have to be found. The particular branch or branches of social security covered would then have to be decided on a case by case basis. Such a formula may appear to be justified on the ground that, for its part, subparagraph (iii) is concerned with a situation where the persons in question are not, strictly speaking, presently employed, that Article 2 of Regulation No 1408/71 also refers to persons who ‘have been subject’ to the legislation of one or more Member States and, finally, that it would be unfortunate that a person who has been classified as an ‘employed worker’ for 25 years, for example, should immediately be excluded from the benefit of the provisions of the regulation on becoming ‘self-employed’.
During the oral procedure, which took place on 7 July 1976, the claimant in the main action represented by J. van Gelder and A. Morritt, the British Government represented by H. Knorpel, and the Commission of the European Communities represented by J. Forman, Legal Adviser, developed the arguments which they had put forward during the written procedure.
The Advocate-General delivered his opinion at the hearing on 13 July 1976.
Law
1. By a decision of 12 February 1976 which was received at the Court Registry on 16 February 1976 the National Insurance Commissioner submitted, pursuant to Article 177 of the EEC Treaty, four questions concerning the interpretation, on the one hand, of paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended by the Act of Accession and, on the other hand of Article 1 (a) (i) (ii) and (iii) of this regulation.
2. Those questions were raised within the framework of a dispute between a British national born in 1906 — the claimant in the main proceedings — who had always resided in Great Britain and who had paid contributions under the British national insurance scheme since 1948, initially as an employed person and subsequently as a self-employed person, and the competent British social security institution. The dispute arose because the claimant fell ill during a stay in France, where he had gone for reasons of health, and he had therefore to receive immediate medical treatment.
3. By virtue of a provision of national law which lays down the principle that ‘a person shall be disqualified for receiving any benefit … for any period during which that person … is absent from Great Britain …’ the said institution refused him — and now refuses his widow who is continuing with the proceedings — sickness benefits in cash for the period during which he stayed in France.
4. Under Article 22 (1) of Regulation No 1408/71 relating inter alia to sickness benefits, ‘a worker’ — a word defined in Article 1 (a) of the regulation — ‘who satisfies the conditions of the legislation of the competent State for entitlement to benefits … and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State … shall be entitled: … (ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers’.
5. Since that provision precludes the application to a worker of such a provision of national law the essential purpose of the questions of the National Insurance Commissioner is to ascertain whether persons in the position of the claimant in the main proceedings have the status of a ‘worker’ within the meaning of Article 1 (a) of Regulation No 1408/71.
The first question
6. In the first question the Court is asked whether paragraph 1 of Point I of Annex V to Regulation No 1408/71 (a point relating exclusively to the United Kingdom) restricts or in fact supplements the definition of the term ‘worker’ appearing in Article 1 (a) of the regulation or any limb of that definition.
7. Under paragraph 1 of Point I (United Kingdom) of Annex V ‘all persons required to pay contributions as employed workers’ shall be regarded as workers for the purposes of Article 1 (a) (ii) of the regulation.
8. Since the said paragraph 1 thus refers exclusively to subparagraph (ii) of Article 1 (a) it is clear from the outset that it cannot relate to the scope of subparagraphs (i) and (iii).
9. For its part subparagraph (ii), as distinct from subparagraph (i), does not expressly refer to ‘restrictions’ which Annex V may apply to the definition of the term ‘worker’.
10. The explanation for the provision in question in Annex V is that the British system, which distinguishes between contributions from employed persons, self-employed persons and non-employed persons, also requires certain categories of persons who do not have this status under the law of employment to ‘pay contributions as employed persons’.
11. The said provision is thus intended to ensure that Article 1 (a) (ii) is applied broadly in that it makes it clear that any person who is required to pay contributions as an employed person can be identified as such by virtue of the manner in which the British system is administered or financed in the sense of the first indent of this subparagraph.
12. Accordingly the answer to the national tribunal must be that, far from restricting the definition of ‘worker’ as it emerges from Article 1 (a), the provision in paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71 is solely concerned to clarify the scope of subparagraph (ii) of this paragraph vis-à-vis British legislation.
The third question
13. In the third question the Court is asked whether a person in the situation of the claimant in the main proceedings is a ‘worker’ within the meaning of Article 1 (a) of Regulation No 1408/71 because he comes within the scope of subparagraph (ii) of that paragraph.
14. For the purposes of the reply to this question it is necessary to set out, in addition to the circumstances previously mentioned, the following facts and aspects of national law which are peculiar to the situation of the claimant and which have been set out by the national tribunal: the claimant when he fell ill was covered by compulsory insurance under a social security scheme which in practice applied inter alia to all employed persons and self-employed persons which nevertheless distinguished between those categories both with regard to the contributions to be paid and to the benefits to which the insured persons were entitled; the claimant, however, was not obliged to pay contributions for the period during which he was abroad; the claimant had contributed to the scheme, first for nine years as an employed person and subsequently until his death, that is, for a period of eighteen years, as a self-employed person; the rate of sickness benefit under the provisions of this scheme, which the claimant could have claimed when he fell ill but for the disqualification clause, was fixed in terms of the rate of the retirement pension to which he would have been entitled if he had not continued to work after reaching the age of sixty-five years; the claimant under those provisions could only have claimed the full rate of sickness benefits in cash by aggregating the contributions paid by him or on his behalf when he had the status of an employed person with his contributions as a self-employed person.
15. A person in such a situation fulfils the first two conditions set out in subparagraph (ii) in that he is ‘compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this regulation’ … ‘under a social security scheme … for the whole working population’.
16. More particularly, with regard to the first condition, the insurance is ‘compulsory’, since the person concerned is insured under the relevant scheme irrespective of his wishes and the insurance does not cease to be compulsory because of the fact that during certain limited periods, such as a stay abroad, payment of contributions is optional for him.
17. Consequently the point to be settled amounts to whether the persons concerned also fulfil the conditions set out in the first indent of subparagraph (ii) namely whether ‘[such a person] can be identified as an employed person by virtue of the manner in which such scheme is administered or financed’, always bearing in mind that, having regard to the facts of the present case, this question need only be considered in relation to the contingency of ‘sickness’.
18. It is impossible to disregard the fact that Regulation No 1408/71, which was adopted before the accession of the new Member States, was not formulated in such a way as to take account of the special features of the respective legislations of the said States.
19. The regulation must be interpreted above all in the light of the spirit and of the objectives of the Treaty.
20. In this connexion it must be borne in mind that, as the Court has previously held, the Community rules on social security ‘follow a general tendency of the social law of Member States to extend the benefits of social security in favour of new categories of persons by reason of identical risks’ (Judgment of 19 December 1968, De Cicco, Case 19/68, [1968] ECR 473; Judgment of 27 October 1971, Janssen, Case 23/71, [1971] ECR 864).
21. Lastly, although Regulation No 1408/71, unlike Regulation No 3 which preceded it, no longer employs the expression ‘wage-earners or assimilated workers’ and merely refers, in the terms of its heading, to ‘employed persons’, certain of the provisions of this regulation nevertheless show clearly that it also applies to certain categories of persons who, when the contingency occurs, do not have the status of ‘employed persons’ within the meaning of the law of employment.
22. First, according to Article 2 (1) which determines the persons covered by the regulation, the regulation shall apply to workers who are ‘or have been’ subject to the social security legislation of one or more Member States.
23. Secondly, under Article 34 of the regulation, for the purposes of Chapter 1 of Title III (the chapter devoted inter alia to the contingency of sickness) a pensioner who is entitled to benefits in kind under the legislation of a Member State as the result of pursuing a professional or trade activity ‘shall … be considered as a worker’.
24. Whilst the regulation thus covers certain persons who have lost the status of worker and who are indeed no longer insured under a social security scheme in one of the Member States it cannot be excluded that the regulation may be applicable, where appropriate, to persons who, although they have lost the status as employed persons, remain compulsorily insured under the same scheme which covered them previously when they had that status.
25. Finally, as paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71 states clearly, the regulation also applies to persons who, in accordance with the relevant national legislation, that is British legislation, are obliged to pay contributions as ‘employed persons’ although in fact they do not have this status.
26. Article 1 (a) (ii) of the regulation must be interpreted in the light of these considerations.
27. This provision refers to the case in which, in order to ‘identify’ as an ‘employed person’ a person who is insured under a social security scheme for the whole working population, reference must be made to the ‘manner in which such scheme is administered or financed’.
28. Consequently the provision must be understood as referring also to persons who are not ‘employed persons’ within the meaning of the law of employment but who must be treated as such for the purposes of applying Regulation No 1408/71, taking account on the one hand of the objectives and of the spirit of this regulation and of Articles 48 to 51 of the Treaty which form its basis and, on the other hand, of the special features of the administration or financing of the scheme to which such persons are affiliated and of the changes which have taken place in the nature of such affiliation.
29. Those conditions are fulfilled in cases like the present which are distinguished by the fact that on the one hand the person concerned also paid contributions as an employed person to the financing of the relevant scheme and on the other hand that his entitlement to sickness benefits in cash at the full rate depends upon taking account of those contributions.
30. Accordingly the reply to the National Insurance Commissioner must be that persons in the situation described by that tribunal are, under British legislation, ‘workers’ within the meaning of Article 1 (a) (ii) of Regulation No 1408/71 for the purposes of the application of the first sentence of Article 22 (1) (ii) of that regulation.
The second and fourth questions
31. In the second and fourth questions the Court is asked whether the persons in the abovementioned situation constitute ‘workers’ within the meaning of paragraph (a) of Article 1 in that they come within the scope either of subparagraph (i) or of subparagraph (iii) of that paragraph.
32. In view of the reply to be given to the third question it is unnecessary to consider these questions.
Costs
33. The costs incurred by the British Government, the Danish Government and the Commission of the European Communities which submitted observations to the Court are not recoverable.
34. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the case pending before the National Insurance Commissioner costs are a matter for him to decide.
On those grounds, THE COURT in answer to the questions submitted to it by the National Insurance Commissioner by decision of 12 February 1976, hereby rules:
1 The provision in paragraph 1 of Point I (United Kingdom) of Annex V to Regulation No 1408/71, far from restricting the definition of the term ‘worker’ which appears in Article 1 (a) of the regulation, is solely intended to clarify the scope of subparagraph (ii) of this paragraph vis-à-vis British legislation.
2 A person who: was compulsorily insured against the contingency of ‘sickness’ successively as an employed person and as a self-employed person under a social security scheme for the whole working population; was a self-employed person when this contingency occurred; at the said time and under the provisions of the said scheme, nevertheless could have claimed sickness benefits in cash at the full rate only if there were taken into account both the contributions paid by him or on his behalf when he was an employed person and those which he made as a self-employed person; constitutes, as regards British legislation, a ‘worker’ within the meaning of Article 1 (a) (ii) of Regulation No 1408/71 for the purposes of the application of the first sentence of Article 22 (1) (ii) of this regulation.