EUROPEAN COMMISSION EMPL/0/05 - EN
SS.TM. 05/05Report on the decisions of the Court since the previous meeting of the Advisory Committee
SECRETARIAT – 15/09/2005
Orig.
ADVISORY COMMITTEE
ON SOCIAL SECURITY FOR MIGRANT WORKERS
Subject: Report on the decisions of the Court since the previous meeting of the Advisory Committee
Note from the Secretariat of 15 September 2005
Index of judgments delivered during the year 2004-2005:
I. COURT OF JUSTICE
A. JUDGMENTS CONCERNING THE INTERPRETATION OF REGULATION (EC) No 1408/71
Law applicable
1. Case C-302/02, Effing, judgment of 20 January 2005 (provisions examined: Articles 3, 4 and 13 of Regulation 1408/71 and Article 12 EC)
2. Case C-372/02, Adanez-Vega v Bundesanstalt für Arbeit, judgment of 11 November 2004 (provisions examined: Articles 13, 67 and 71 of Regulation 1408/71)
3. Case C-249/04, Allard v Institut national d'assurances sociales pour travailleurs indépendants, judgment of 26 May 2005(provisions examined: Article 13 of Regulation 1408/71 and Article 43 EC)
Sickness benefits
4. Case C-193/03, Betriebskrankenkasse der Robert Bosch GmbH v Federal Republic of Germany,judgment of 14 October 2004 (provisions examined: Article 34 of Regulation 574/72)
5. Case C-145/03, Keller v InstitutoNacional de la Seguridad Social (INSS), judgment of 12 April 2005 (provisions examined: Article 22 of Regulation 1408/71)
Pensions
6. Case C-101/04, Noteboom v Rijksdienst voor Pensioenen, judgment of 20 January 2005 (provisions examined: Articles 45 and 71 of Regulation 1408/71)
7. Case C-306/03, Salgado Alonso v Instituto Nacional de la Seguridad Social (INSS), judgment of 20 January 2005 (Articles 45 and 46 of Regulation 1408/71 and Articles 39 and 42 EC)
8. Case C-225/02, García Blanco v (INSS), judgment of 20 January 2005 (Article 45 of Regulation 1408/71)
9. Case C-30/04, Koschitzki v Istituto Nazionale della Previdenza Sociale (INPS), judgment of 21 July 2005 (provisions examined: Article 46 of Regulation 1408/71)
Family benefits
10. Case C-469/02, Commission v Belgium,judgment of 7 September 2004 (provisions examined: Article 73 of Regulation 1408/71, Article 7 of Regulation 1612/68 and Article 39 EC)
11. Case C-543/03, Christine Dodl, v Tiroler Gebietskrankenkasse, judgment of 7 June 2005 (provisions examined: Articles 73 and 76 of Regulation 1408/71 and Article 10 of Regulation 574/72)
12. Case C-153/03, Caisse nationale des prestations familiales v Schwarz, née Weide, judgment of 7 July 2005 (provisions examined: Article 73 of Regulation 1408/71 and Article 10 of Regulation 574/72)
B. JUDGMENTS CONCERNING THE INTERPRETATION OF OTHER PROVISIONS
13. Case C-341/03, Commission/Greece, judgment of 7 October 2004 (Directive 98/49/EC)
14. Case C-38/03, Commission/Belgium, judgment of 13 January 2005 (Article 28 EC)
15. Case C-400/02, judgment of 26 September 2004 Gerard Merida v Federal Republic of Germany (provisions examined: Article 39 EC)
16. Case C-293/03 My v Office national des pensions, judgment of 26 December 2004 (provisions examined: Articles 39 and 10 EC)
17. Case C-386/02, Baldinger v Pensionsversicherungsanstalt der Arbeiter, judgment of 16 September 2004 (provisions examined: Article 4 of Regulation 1408/71, Article 7 of Regulation 1612/68 and Article 39 EC)
18. Case C-227/03, van Pommeren-Bourgondiën v Raad van bestuur van de Sociale verzekeringsbank, judgment of 7 July 2005 (provisions examined: Article 39 EC)
19. Case C-512/03, Blanckaert v Inspecteur van de Belastingdienst, judgment of 8 September 2005 (provisions examined: Article 13 of Regulation 1408/71 and Articles 56 and 58 EC)
European citizenship
20. Case C-456/02, Michel Trojani v Centre public d'aide sociale de Bruxelles, judgment of 7 September 2004 (provisions examined: Articles 12, 18 and 39 EC)
21. Case C-258/04, Ioannidis, judgment of 15 September 2005 (Article 39 EC)
II. JUDGMENT OF THE EFTA COURT
22. Tsomakas Athanasios v The Norwegian State, 14 December 2004.
III. EUROPEAN COURT OF HUMAN RIGHTS
23. Decision on the admissibility of STEC and others v United Kingdom (6/7/2005)
I. COURT OF JUSTICE
A. JUDGMENTS CONCERNING THE INTERPRETATION OF REGULATION (EC) No 1408/71
Law applicable
1. Case C-302/02, Effing, judgment of 20 January 2005 (provisions examined: Articles 3, 4 and 13 of Regulation 1408/71 and Article 12 EC)
Ruling
In circumstances such as those in the main proceedings, in which an employed person within the meaning of Article 2(1) of Regulation (EEC) No1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to selfemployed persons and to members of their families moving within the Community, as amended by Regulation (EC) No1386/2001 of the European Parliament and of the Council of 5June 2001, has been transferred, as a prisoner, to the Member State from which he comes in order to serve the remainder of his sentence there, it is the legislation of that Member State which, in the area of family benefits and in accordance with the provisions of Article 13(2) of that regulation, is the applicable legislation. Neither the provisions of that regulation, particularly Article 3 thereof, nor Article 12 EC, preclude, in such a situation, the legislation of a Member State from making the grant of family benefits such as those provided for by the Österreichisches Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschußgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children) to the members of the family of such a Community national subject to the condition that he remain a prisoner in that State.
Grounds
43. However, Article 13(2)(f), which was introduced into Regulation No1408/71 following the judgment in Ten Holder, implies that a cessation of all occupational activity, regardless of whether it is temporary or definitive, places the person in question outside the scope of application of Article 13(2)(a). Article 13(2)(f) thus applies inter alia to a person who has ceased carrying on occupational activity in one MemberState and has transferred his residence to another MemberState (see Kuusijärvi, paragraphs 39 to 42 and 50).
44. It follows from the foregoing that, in circumstances such as those in the main proceedings, in which a prisoner has ceased carrying on all occupational activity in the Member State where he started to serve his sentence and, at his request, was transferred from a prison in that Member State to a prison in his own Member State in order to serve the remaining 15 months of his sentence, the legislation applicable to him under the conflict rules contained in Article 13 of Regulation No1408/71 cannot be that of the Member State from which he was transferred.
45. In those circumstances, the legislation applicable can only be that of the MemberState in which the person in question is serving the remainder of his sentence. This finding alone suffices to resolve the issue in the main proceedings, and it is not necessary to determine whether the German legislation must apply in the present case pursuant to Article 13(2)(f) of Regulation No1408/71 as legislation of the State of residence of the person in question, or, as the case may be, and taking account of the explanations in the observations of the German Government, pursuant to Article 13(2)(a) of that regulation as legislation of the Member State where the person in question carries on occupational activity.
2. Case C-372/02, Adanez-Vega v Bundesanstalt für Arbeit, judgment of 11 November 2004 (provisions examined: Articles 13, 67 and 71 of Regulation 1408/71)
Ruling
1. Article 13(2)(f) of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EEC) No 2195/91 of 25 June 1991, must be interpreted as meaning that a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State is subject to the legislation of the Member State of residence.
Article 71(1)(b)(ii) of Regulation No 1408/71, as amended, must be interpreted as meaning that it is a special provision concerning the determination of the legislation applicable in regard to unemployment benefits with the result that if the conditions determining its application are met the applicable legislation is that provided for in that provision.
It is for the referring court to determine whether in the main proceedings the conditions governing application of Article 71(1)(b)(ii) are met.
If in the main proceedings the conditions governing the application of Article 71(1)(b)(ii) of Regulation No 1408/71, as amended, are satisfied, the legislation applicable to a person residing in a Member State and unemployed there after performing his compulsory military service in another Member State would, under that provision, also be the legislation of the Member State of residence.
2. A period of compulsory military service in another Member State constitutes a‘[period of employment] completed as an employed person under the legislation of [that] other Member State’ for the purposes of Article 67(1) of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, where, first, it is so defined or recognised by the legislation of that other Member State or treated as such and regarded by that legislation as a period equivalent to a period of employment and where, second, the person concerned was insured within the meaning of Article 1(a) of Regulation No 1408/71 during his military service.
The condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’ for the purposes of Article 67(3) of Regulation No 1408/71, as amended, precludes the obligation to aggregate periods of employment only where a period of insurance was completed in another Member State after the last period of insurance completed under the legislation under which the benefits are claimed.
3. In circumstances such as those of the main proceedings, Article 3 of Regulation No 1408/71, in the version updated by Regulation No 2001/83, as amended by Regulation No 2195/91, does not preclude a competent institution, when examining entitlement to unemployment benefit, from not taking into account, in calculating periods of insurance completed, a period of compulsory military service performed in another Member State.
Grounds
21. It must be observed that under Article 13(2)(e) of Regulation No 1408/71 the person called up for service in the armed forces of a MemberState is subject to the legislation of that State.
22. Thus, in the main proceedings Mr Adanez-Vega was subject to the legislation of Spain while performing his military service in Spain. However, that legislation ceased to apply when he finished his military service.
23. It is clear from Article 13(2)(f) of Regulation No 1408/71 that a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with the provisions laid down in Article 13(2)(a) to (d) or Articles 14 to 17 of that Regulation, is to be subject to the legislation of the Member State in whose territory he resides.
24. According to the Court’s case-law Article 13(2)(f) of Regulation No 1408/71 applies both to persons who have definitively ceased all occupational activity and to those who have merely temporarily ceased their occupational activity (Case C275/96 Kuusijärvi [1998] ECR I-3419, paragraphs 39 and 40).
25. Accordingly, the legislation applicable to unemployed persons under the general jurisdictional rules in Title II of Regulation No 1408/71 is therefore in principle that of the MemberState of residence.
30. Under Article 71(1)(b)(ii) of that regulation, an employed person, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory, is to receive benefits in accordance with the legislation of that State as if he had last been employed there.
44. As a preliminary matter it should be pointed out that it is clear from the structure and wording of Articles 67 and 71 of Regulation No 1408/71 that the application of the aggregation rules in Article 67 is independent of the application of the rules in Article 71 concerning designation of the applicable legislation (see Case 388/87 Warmerdam-Steggerda [1989] ECR 1203, paragraph 18). That means that the aggregation rules contained in Article 67 are applicable even where the legislation applicable in regard to unemployment benefits would have been determined under the rules in Article 71. Moreover such an eventuality is provided for in Article 67(3) of that regulation.
47. In the main proceedings the period of military service performed by Mr Adanez-Vega in Spain must therefore be regarded as a ‘[period of employment] completed as an employed person under the legislation of [that] Member State’ for the purposes of Article 67(1) of Regulation No 1408/71 where, first, it is so defined or recognised by Spanish legislation or treated as such and regarded by that legislation as a period equivalent to a period of employment and where, second, Mr Adanez-Vega was insured for the purposes of Article 1(a) of Regulation No 1408/71 during his military service. It is for the referring court to examine whether those conditions are met.
49. As a preliminary matter it should be pointed out that the condition in Article 67(3) of Regulation No 1408/71 is not applicable in the main proceedings if Mr Adanez-Vega turns out to come within the scope of Article 71(1)(b)(ii) thereof.
50. Under Article 67(3) of Regulation No 1408/71 the obligation on the competent institution to take account, in the calculation of periods of insurance completed, of a period of insurance or employment completed as an employed person under the legislation of another Member State is subject to the condition that ‘the person concerned should have completed lastly … periods of insurance … in accordance with the provisions of the legislation under which the benefits are claimed’, except in the case of unemployed persons mentioned in Article 71(1)(a)(ii) and (b)(ii) of that regulation because they were residing during the course of their last employment outside the State competent at that time.
3. Case C-249/04, Allard v Institut national d'assurances sociales pour travailleurs indépendants, judgment of 26 May 2005(provisions examined: Article 13 of Regulation 1408/71 and Article 43 EC)
Ruling
1.Article 13 et seq. of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, require a contribution such as the moderation contribution payable under Royal Decree No 289 of 31 March 1984 to be calculated in such as way as to include under the heading of occupational income the income obtained in the territory of a Member State other than the Member State whose social legislation is applicable even if, after paying that contribution, the selfemployed person cannot claim any social security or other benefit at the expense of that State.
2.Article 52 of the EC Treaty (now, after amendment, Article 43 EC) does not preclude the imposition of a contribution such as the moderation contribution, payable in the Member State of residence and calculated taking into account income obtained in another Member State, on selfemployed persons pursuing professional activities in that capacity in those two Member States.
Grounds
19. As the Court has already ruled, it is clear from the wording of Article 13(1) of Regulation No 1408/71 that, subject to Article 14c thereof, a person to whom that regulation applies is subject to the legislation of a single Member State only. It is also clear from the wording of Article 14a(2) that, where a person is normally selfemployed in the territory of two or more Member States, he is subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State (see order in Case C242/99 Vogler [2000] ECRI9083, paragraph 19).
20. That means that, in this case, Mr Allard is, according to Regulation No 1408/71, exclusively subject to the social security scheme established by Belgian legislation (see, by analogy, order in Vogler, cited above, paragraph 20).
21. Furthermore, Article 14d(1) of Regulation No 1408/71 specifies that the person referred to in Article 14a(2) of that regulation is to be treated as if he pursued all his professional activity or activities in the territory of the Member State concerned (see, by analogy, Case C71/93 Van Pouke [1994] ECR I1101, paragraph 24).
22. Consequently, a person in the situation described in the order for reference who is simultaneously selfemployed in Belgium and in France must be subject, as a result of the latter activity, to the appropriate Belgian legislation under the same conditions as if he was self-employed in Belgium (see by analogy, Van Pouke, paragraph 25).
23. It follows that a social security contribution such as the moderation contribution payable in Belgium by Mr Allard must be calculated taking into account the income received in France.
Sickness benefits
4. Case C-193/03, Betriebskrankenkasse der Robert Bosch GmbH v Federal Republic of Germany,judgment of 14 October 2004 (provisions examined: Article 34 of Regulation 574/72)
Ruling
Article 34 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, as amended by Council Regulation (EC) No 1399/1999 of 29 April 1999, is to be interpreted as not precluding a practice whereby a health insurance fund, in the application of national rules, reimburses medical costs incurred by its members during a stay in another Member State in full when those costs do not exceed DEM 200.
Grounds
21. The Court has stated with respect to Article 22 of Regulation No 1408/71, furthermore, that that provision is not intended to regulate, and therefore does not in any way prevent, reimbursement by Member States, at the rates in force in the competent State, of costs incurred in connection with treatment provided in another Member State where the legislation of the Member State in which the person concerned is insured makes provision for such reimbursement and the rates applied under that legislation are more beneficial than those applied by the Member State in which the treatment was provided (see, inter alia, Vanbraekel, cited above, paragraph 36).
22. The same approach should be adopted with respect to a provision which, like Article 34 of Regulation No 574/72 and as alluded to in paragraph 20 of this judgment, is intended only to introduce an alternative form of reimbursement, to be applied when a person covered by social insurance could obtain only benefits in kind provided directly by the institution of the place of stay on behalf of the competent institution in accordance with Article 22(1)(a)(i) or Article 31 of Regulation No 1408/71.
5. Case C-145/03, Keller v InstitutoNacional de la Seguridad Social (INSS), judgment of 12 April 2005 (provisions examined: Article 22 of Regulation 1408/71)
Ruling
1.Article 22(1)(a)(i) and (c)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Article 22(1) and (3) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71, both as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted as meaning that, where the competent institution has consented, by issuing a Form E111 or Form E112, to one of its insured persons receiving medical treatment in a Member State other than the competent Member State, it is bound by the findings as regards the need for urgent vitally necessary treatment made during the period of validity of the form by doctors authorised by the institution of the Member State of stay, and by the decision of those doctors, taken during that period on the basis of those findings and the current state of medical knowledge, to transfer the patient to a hospital establishment in another State, even if that State is a non-member country. However, in such a situation, in accordance with Article 22(1)(a)(i) and (c)(i) of Regulation No 1408/71, the insured person’s right to the benefits in kind provided on behalf of the competent institution is subject to the condition that, under the legislation administered by the institution of the Member State of stay, that institution is obliged to provide persons insured with it with the benefits in kind corresponding to such treatment.