1 BY LETTER OF 25 APRIL 1979 WHICH WAS RECEIVED AT THE COURT ON 27 APRIL 1979 , THE PRESIDENT OF THE CENTRALE RAAD VAN BEROEP SENT TO THE COURT TWO ORDERS OF THE CENTRALE RAAD VAN BEROEP OF 10 OCTOBER 1978 AND 13 MARCH 1979 RESPECTIVELY BY WHICH THAT COURT REFERRED QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE INTERPRETATION OF 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS AROSE OUT OF A DISPUTE CONCERNING THE REFUSAL BY THE NETHERLANDS SOCIAL SECURITY INSTITUTION , THE BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE LEDER- EN LEDERVERWERKENDE INDUSTRIE , TILBURG , HEREINAFTER REFERRED TO AS THE ' ' BEDRIJFSVERENIGING ' ' , TO GRANT TO A PERSON RECEIVING A PENSION FOR INCAPACITY FOR WORK UNDER THE NETHERLANDS LAW ON INSURANCE AGAINST PROTRACTED INCAPACITY FOR WORK , HEREAFTER REFERRED TO AS ' ' THE WAO ' ' , REIMBURSEMENT OF PART OF HOSPITAL EXPENSES AND COST OF MEDICINES INCURRED IN 1973/74 FOR WHICH SHE WAS NOT INDEMNIFIED BY ANY OTHER SOCIAL SECURITY INSTITUTION .
3 ARTICLE
60 OF THE NETHERLANDS LAW ON INSURANCE AGAINST PROTRACTED INCAPACITYFOR WORK ( WAO ), REPEALED FROM 1 OCTOBER 1976 , BUT SUBSTANTIALLY RE-ENACTED BY THE GENERAL LAW ON INCAPACITY FOR WORK ( ALGEMENE ARBEIDSONGESCHIKTHEIDSWET ) WHICH ENTERED INTO FORCE ON THE SAME DATE , PROVIDED IN PARAGRAPH ( 3 ) THAT RECIPIENTS OF A PENSION FOR INCAPACITY FOR WORK MAY IN CERTAIN CIRCUMSTANCES BE ENTITLED TO ' ' BENEFITS INTENDED TO MAINTAIN , RESTORE OR IMPROVE THEIR CAPACITY FOR WORK AS WELL AS MEDICAL OR SURGICAL BENEFITS , ' ' PROVIDED THAT ' ' THOSE BENEFITS DO NOT FORM PART OF THE BENEFITS IN KIND GOVERNED BY . . . THE ZIEKENFONDSWET OR . . . BY THE ALGEMENE WET BIJZONDERE ZIEKTEKOSTEN . . . ' ' . A FURTHER FACTOR IN THE CASE AS JUST DESCRIBED IS THAT THE BEDRIJFSVERENIGING REFUSED THE CLAIMANT SUCH AN ALLOWANCE FOR THE DISPUTED HOSPITAL EXPENSES AND MEDICINES ON THE GROUND THAT THOSE EXPENSES FORMED PART OF THE WHOLE OF THE BENEFITS IN KIND GOVERNED BY THE ZIEKENFONDSWET OR BY THE SAID ALGEMENE WET BIJZONDERE ZIEKTEKOSTEN AND WERE THUS EXCLUDED FROM THOSE WHICH COULD BE GRANTED TO THE RECIPIENT OF A PENSION FOR INCAPACITY FOR WORK UNDER ARTICLE 60 ( 3 ) OF THE WAO , THE FOURTH PARAGRAPH OF WHICH ARTICLE PROVIDED HOWEVER THAT THE BEDRIJFSVERENIGING HAS THE POWER , IN PARTICULAR CIRCUMSTANCES AND UPON CERTAIN CONDITIONS TO GRANT INSURED PERSONS THAT ALLOWANCE .
4 IN VIEW OF THAT LEGISLATION AND HAVING REGARD TO THE RULES OF COMMUNITY LAW ON ' ' SICKNESS AND MATERNITY BENEFITS ' ' , THE CENTRALE RAAD VAN BEROEP ASKED THE COURT OF JUSTICE FOR A PRELIMINARY RULING UPON THE FOLLOWING QUESTIONS :
' ' QUESTION 1
MUST THE WORDS ' SICKNESS AND MATERNITY BENEFITS ' WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) AND CHAPTER 1 OF REGULATION ( EEC ) NO 1408/71 BE INTERPRETED AS ALSO INCLUDING IN PRINCIPLE BENEFITS UNDER LEGISLATION CONCERNING INVALIDITY WHICH ARE IN THE NATURE OF MEDICAL OR SURGICAL BENEFITS?
QUESTION 2
IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE , DOES THAT MEAN , HAVING REGARD TO ARTICLE 19 ( 1 ) AND ( 2 ) AND ARTICLE 28 ( 1 ) OF THE REGULATION , THAT THE COMPETENT INSTITUTION OF A MEMBER STATE IS NOT EMPOWERED TO GRANT SUCH BENEFITS TO A PERSON WHO IS ENTITLED TO INVALIDITY BENEFITS UNDER THE LEGISLATION OF THAT MEMBER STATE IF THE PERSON CONCERNED RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE AND AS A RESULT THE LEGISLATION CONCERNING SICKNESS ( AND MATERNITY ) BENEFITS OF THE LATTER STATE IS APPLICABLE TO HIM?
QUESTION 3
IF QUESTION 1 IS ANSWERED IN THE NEGATIVE , MUST ARTICLES 19 AND 28 OF THE REGULATION BE INTERPRETED AS EXCLUDING SUPPLEMENTARY MEASURES UNDER THE LEGISLATION OF A MEMBER STATE CONCERNING INVALIDITY PURSUANT TO WHICH THE PERSON CONCERNED IS ENTITLED TO INVALIDITY BENEFITS IF THE PERSON CONCERNED RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE AND AS A RESULT THE LEGISLATION CONCERNING SICKNESS ( AND MATERNITY ) BENEFITS OF THE LATTER MEMBER STATE IS APPLICABLE TO HIM?
' '
( A ) THE FIRST QUESTION
5 FROM THE EXPLANATIONS GIVEN BY THE PRESIDENT OF THE CENTRALE RAAD VAN BEROEP IT APPEARS THAT THAT COURT , HAVING ESTABLISHED THAT REGULATION NO 1408/71 IS APPLICABLE TO THE PERSON CONCERNED OWING TO THE FACT THAT SHE IS THE RECIPIENT OF A PENSION OR THE SPOUSE OF AN EMPLOYED WORKER , IN ASKING ITS FIRST QUESTION ESSENTIALLY WISHES TO KNOW WHETHER BENEFITS GRANTED UNDER LEGISLATION ON INVALIDITY , SUCH AS THE NETHERLANDS WAO , WHICH ARE IN THE NATURE OF MEDICAL OR SURGICAL BENEFITS , CONSTITUTE ' ' SICKNESS AND MATERNITY BENEFITS ' ' WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) AND CHAPTER 1 , TITLE III , OF THAT REGULATION OR WHETHER THEY ARE IN THE NATURE OF ' ' INVALIDITY BENEFITS ' ' AS UNDER ( B ) OF ARTICLE 4 ( 1 ) AND UNDER CHAPTER 2 OF TITLE III OF THE SAME REGULATION .
6 IT IS WELL ESTABLISHED THAT THE REQUIREMENT THAT COMMUNITY LAW BE APPLIED UNIFORMLY WITHIN THE COMMUNITY IMPLIES THAT THE CONCEPTS TO WHICH THAT LAW REFERS SHOULD NOT VARY ACCORDING TO THE PARTICULAR FEATURES OF EACH SYSTEM OF NATIONAL LAW BUT REST UPON OBJECTIVE CRITERIA DEFINED IN A COMMUNITY CONTEXT . IN ACCORDANCE WITH THIS PRINCIPLE , THE CONCEPT OF ' ' SICKNESS AND MATERNITY BENEFITS ' ' APPEARING IN ARTICLE 4 ( 1 ) ( A ) OF REGULATION NO 1408/71 IS TO BE DETERMINED FOR THE PURPOSE OF APPLYING THE REGULATION NOT ACCORDING TO THE TYPE OF NATIONAL LEGISLATION CONTAINING THE PROVISIONS GIVING THOSE BENEFITS , BUT IN ACCORDANCE WITH COMMUNITY RULES WHICH DEFINE WHAT THOSE BENEFITS SHALL CONSIST OF .
7 REGULATION NO 1408/71 GOVERNS THE PROBLEMS ARISING FROM INVALIDITY BENEFITS IN TITLE III , CHAPTER 2 , WHILST SICKNESS AND MATERNITY BENEFITS ARE DEALT WITH BY PROVISIONS IN CHAPTER 1 OF THE SAME TITLE . HOWEVER , THE PROVISIONS OF TITLE III , CHAPTER 2 , COVER ' ' CASH ' ' BENEFITS ONLY AMONG THE BENEFITS GRANTED ON THE GROUND OF ' ' INVALIDITY ' ' , OMITTING BENEFITS ' ' IN KIND ' ' . PROBLEMS TO DO WITH BENEFITS IN KIND ARE DEALT WITH , ON THE OTHER HAND , BY THE PROVISIONS OF CHAPTER 1 OF THE SAME TITLE . AS CAN BE SEEN FROM ARTICLE 22 IN PARTICULAR , THOSE PROVISIONS COVERING BOTH BENEFITS IN KIND AND CASH BENEFITS INCLUDE BENEFITS IN THE NATURE OF HEALTH CARE AMONG BENEFITS IN KIND PAID UNDER ' ' SICKNESS AND MATERNITY ' ' AND THUS ALSO EXTEND TO MEDICAL OR SURGICAL BENEFITS .
8 IN THESE CIRCUMSTANCES AND IN VIEW OF THE GENERAL REFERENCE IN THE OPENING WORDS OF ARTICLE 4 ( 1 ) TO ' ' ALL ' ' LEGISLATION CONCERNING THE BRANCHES OF SOCIAL SECURITY SET OUT FROM ( A ) TO ( H ), IT IS APPROPRIATE TO HOLD THAT REGULATION NO 1408/71 INCLUDES AMONGST SICKNESS AND MATERNITY BENEFITS REFERRED TO IN ARTICLE 4 ( 1 ) ( A ) ALL BENEFITS PROVIDED IN THE CASE OF SICKNESS AND MATERNITY INCLUDING HEALTH CARE , WHATEVER THE TYPE OF SOCIAL LEGISLATION OR WHATEVER BENEFITS ARE PROVIDED , AS LONG AS THE LEGISLATION IN QUESTION RELATES TO A BRANCH OF SOCIAL SECURITY WHICH CONCERNS THEM .
9 THEREFORE THE ANSWER TO THE FIRST QUESTION SHOULD BE THAT THE WORDS ' ' SICKNESS AND MATERNITY ' ' BENEFITS WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) AND CHAPTER 1 OF TITLE III OF REGULATION NO 1408/71 MUST BE INTERPRETED AS INCLUDING BENEFITS UNDER LEGISLATION CONCERNING INVALIDITY WHICH ARE IN THE NATURE OF MEDICAL OR SURGICAL BENEFITS .
( B ) THE SECOND QUESTION
10 FROM THE EXPLANATIONS GIVEN BY THE PRESIDENT OF THE CENTRALE RAAD VAN BEROEP REFERRED TO ABOVE IT APPEARS THAT THAT COURT WISHES TO KNOW BY ITS SECOND QUESTION WHETHER , IF THE DISPUTED BENEFITS ARE TO BE CONSIDERED AS SICKNESS AND MATERNITY BENEFITS WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) OF REGULATION NO 1408/71 , THAT REGULATION , AND IN PARTICULAR ARTICLES 19 AND 28 ( 1 ), MUST BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION OF A MEMBER STATE DOES NOT HAVE THE POWER TO GRANT BENEFITS OF A MEDICAL OR SURGICAL NATURE TO THE RECIPIENT OF AN INVALIDITY PENSION DRAWN UNDER THE LEGISLATION OF THAT STATE WHO RESIDES IN A MEMBER STATE OTHER THAN THE COMPETENT STATE , OR IF ON THE CONTRARY , THE SAID REGULATION DOES NOT PRECLUDE THE SAID BENEFITS FROM BEING GRANTED TO SUCH AN INSURED PERSON WHEN THE GRANTING OF THAT BENEFIT IS PERMITTED IN PARTICULAR CIRCUMSTANCES BY THE ABOVE-MENTIONED SOCIAL LEGISLATION .
11 THE ESSENTIAL OBJECT OF REGULATION NO 1408/71 ADOPTED UNDER ARTICLE 51 OF THE TREATY IS TO ENSURE THAT SOCIAL SECURITY SCHEMES GOVERNING WORKERS IN EACH MEMBER STATE MOVING WITHIN THE COMMUNITY ARE APPLIED IN ACCORDANCE WITH UNIFORM COMMUNITY CRITERIA . TO THIS END IT LAYS DOWN A WHOLE SET OF RULES FOUNDED IN PARTICULAR UPON THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY OR RESIDENCE AND UPON THE MAINTENANCE BY A WORKER OF HIS RIGHTS ACQUIRED BY VIRTUE OF ONE OR MORE SOCIAL SECURITY SCHEMES WHICH ARE OR HAVE BEEN APPLICABLE TO HIM . TO INTERPRET REGULATION NO 1408/71 AS PROHIBITING NATIONAL LEGISLATION TO GRANT A WORKER SOCIAL SECURITY BROADER THAN THAT PROVIDED BY THE APPLICATION OF THE SAID REGULATION WOULD THEREFORE BE GOING BEYOND THAT OBJECTIVE , AND ALSO OUTSIDE THE PURPOSE AND SCOPE OF ARTICLE 51 .
12 NOR DOES SUCH AN INTERPRETATION GATHER ANY SUPPORT FROM EITHER THE LETTER OR THE SPIRIT OF ARTICLES 19 AND 28 ( 1 ) OF REGULATION NO 1408/71 . ARTICLE 19 ( 1 ) ( A ) LAYS DOWN THAT BENEFITS IN KIND TO WHICH A WORKER RESIDING WITHIN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE IS ENTITLED SHALL BE PROVIDED ON BEHALF OF THE COMPETENT INSTITUTION BY THE INSTITUTION OF THE PLACE OF RESIDENCE IN ACCORDANCE WITH LEGISLATION ADMINISTERED BY THAT INSTITUTION AS THOUGH HE WERE INSURED WITH IT AND ARTICLE 19 ( 2 ) EXTENDS THOSE RULES TO MEMBERS OF THE WORKER ' S FAMILY WHO ARE RESIDING IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE . ARTICLE 28 ( 1 ) EMBODIES THE SAME PRINCIPLE BY PROVIDING SIMILAR RULES AS REGARDS INTER ALIA RECIPIENTS OF A PENSION RESIDING IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE . THESE PROVISIONS ESSENTIALLY CONFINE THEMSELVES TO LAYING DOWN ' ' RULES OF CONFLICT ' ' ENABLING THE DETERMINATION , IN REGARD TO A WORKER OR RECIPIENTS OF A PENSION RESIDING IN A MEMBER STATE OTHER THAN THE COMPETENT STATE , OF THE INSTITUTION RESPONSIBLE FOR THE PAYMENT OF THE BENEFITS THEREIN MENTIONED AS WELL AS THE LAW APPLICABLE . IN THESE CIRCUMSTANCES , IT WOULD BE MISCONSTRUING THE LETTER AND THE SPIRIT OF ARTICLES 19 AND 28 ( 1 ) TO INTERPRET THEM AS PROHIBITING THE COMPETENT INSTITUTION TO GRANT SOCIAL BENEFITS TO A WORKER OR A RECIPIENT OF A PENSION WHICH ARE MORE FAVOURABLE THAN THOSE WHICH IT IS BOUND TO PROVIDE FOR THEM UNDER THE COMMUNITY RULES IF THE NATIONAL LEGISLATION WHICH THAT INSTITUTION APPLIES ENABLES IT IN PARTICULAR CIRCUMSTANCES TO GRANT SUCH ADDITIONAL SOCIAL SECURITY TO THOSE INSURED PERSONS .
13 IT MATTERS LITTLE THAT IN THIS CASE A WORKER OR A RECIPIENT OF THE PENSION IN QUESTION RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THE COMPETENT STATE . ALTHOUGH UNDER ARTICLES 19 AND 28 ( 1 ) OF REGULATION NO 1408/71 SUCH A FACTOR IS DECISIVE FOR THE DETERMINATION OF THE INSTITUTION RESPONSIBLE FOR THE PROVISION OF THE BENEFITS TO WHICH THE INSURED PERSON IS ENTITLED AND OF THE LAW APPLICABLE TO THE PROVISION OF THOSE BENEFITS , FOR THE REASONS SET OUT ABOVE , IT HAS NO BEARING ON THE GRANT BY THE RELEVANT LEGISLATION OF ADDITIONAL SOCIAL BENEFITS TO WHICH THE INSURED PERSON IS NOT ENTITLED BUT WHICH THE COMPETENT INSTITUTION MAY ALLOW HIM OR HER .
14 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE THAT REGULATION NO 1408/71 HAVING REGARD ALSO TO ARTICLES 19 AND 28 ( 1 ) THEREOF DOES NOT FETTER THE POWER OF THE COMPETENT INSTITUTION OF A MEMBER STATE TO GRANT SICKNESS OR MATERNITY BENEFITS , WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) OF THE SAID REGULATION , INCLUDING BENEFITS OF A MEDICAL OR SURGICAL NATURE , TO A PERSON WHO IS IN RECEIPT OF AN INVALIDITY PENSION UNDER THE LEGISLATION OF THAT MEMBER STATE AND WHO RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE .
15 IN VIEW OF THE ANSWER TO THE FIRST QUESTION , NO EXAMINATION OF THE THIRD QUESTION IS NECESSARY .
COSTS
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE AND AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRESIDENT OF THE CENTRALE RAAD VAN BEROEP BY LETTER DATED 25 APRIL 1979 , HEREBY RULES :
1 . THE WORDS ' ' SICKNESS AND MATERNITY BENEFITS ' ' WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) AND CHAPTER 1 OF TITLE III OF REGULATION NO 1408/71 MUST BE INTERPRETED AS INCLUDING BENEFITS UNDER LEGISLATION CONCERNING INVALIDITY WHICH ARE IN THE NATURE OF MEDICAL OR SURGICAL BENEFITS .
2 . REGULATION NO 1408/71 , HAVING REGARD ALSO TO ARTICLES 19 AND 28 ( 1 ) THEREOF , DOES NOT FETTER THE POWER OF THE COMPETENT INSTITUTION OF A MEMBER STATE TO GRANT SICKNESS OR MATERNITY BENEFITS , WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( A ) OF THE SAID REGULATION , INCLUDING BENEFITS OF A MEDICAL OR SURGICAL NATURE , TO A PERSON WHO IS IN RECEIPT OF AN INVALIDITY PENSION UNDER THE LEGISLATION OF THAT MEMBER STATE AND WHO RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE .
