IV —Observations of the Commission of the EEC
Only the Commission of the EEC has made observations. It considers that Article 12 of the Regulation ought to be construed as follows:— it requires the exclusive application of the legislation of the country of employment when all the legal systems provide for compulsory insurance based on the exercise of an occupation;— as against this, it still allows for the possibility of a simultaneous application, on the one hand, of provisions for compulsory insurance and, on the other hand, of provisions for voluntary or optional continued insurance, since in this case the payment of two contributions is not obligatory; the worker alone, and not the employer, has to pay two contributions, one of them of his own free will;— it also allows for the simultaneous application of two schemes, one of which calls for compulsory membership based on the exercise of a working activity, the other being applicable to the whole population with residence as the sole qualification, on condition, however, that membership of the latter scheme does not involve any obligation to participate in its financing by a specific contribution.The Commission bases its argument on the following considerations:(a) First, it discusses the content of the AWW and points out in particular that this Law does not require for its application the exercise of any economic activity whatever, but that it applies equally and in a general manner to the whole population resident in the Netherlands. The Royal Decree of 10 July 1959 excludes the application of the AWW where the person concerned is employed in another country and ‘is insured’ in accordance with the law of such country against premature death. According to Netherlands law this expression must be understood as meaning that the only important factor is whether the person concerned is employed in another country and ‘is insured’ in accordance with the law of such country against premature death. According to Netherlands law this expression must be understood as meaning that the only important factor is whether the person concerned has been insured in the State where he was employed, but not if he in fact receives benefit there.Thus the appeal could have already been dismissed on the basis of Netherlands law alone. However an examination of the content of Article 12 of Regulation No 3 is important to the extent that, a priori, it is no use to keep to the contents of Netherlands law if it follows from this Article that French law alone is applicable.The question from the Netherlands court must be interpreted in the light of the foregoing observations. The Commission is of the opinion that it matters little to the court whether Article 12 refers to the law of the country in which an insured person has been employed only when the latter can invoke it in his favour; on the contrary the court wishes to know whether the reference to the legal system of the country in which an insured person is employed always excludes the simultaneous application of the provisions of another country, in particular when the application of the last-mentioned provisions is not linked to the exercise of a working activity, but when it relates to the whole population which resides in the country.(b) Article 12 is a rule concerning the conflict of laws such as must exist in a series of provisions which coordinates the social insurance laws of several countries. It must be examined in the light of the development which has become apparent since the last war in the various international conventions concerning social security. The rules governing conflict of laws in these conventions have a double purpose: first, to avoid the payment of double contributions by employers and employees; secondly, to ensure that the rules of one of the States is applicable in every case when those of the other State are not. The exclusive application of the legal system to which reference is made each time serves the first purpose; its compulsory application serves the second. In construing corresponding provisions it is necessary to distinguish between the two objectives. Reference to a legal system which is applicable exclusively is necessary only in so far as the different legal systems which may be in question provide for compulsory contributions by those insured or by employers, but not in other cases where, for example, one of the two laws makes provision only for voluntary insurance, or compulsory insurance without compulsory contribution.(c) These principles are applicable also in respect of the construction of Article 12, which is based to a great extent on similar provisions in previous social security conventions.Article 12 unequivocally provides for the compulsory application of the law of the State in which the insured person is employed, but has no precise provisions relating to the question of exclusive application. Nevertheless in certain cases Community law is by no means opposed to the simultaneous application of two systems of legal rules as appears from the sense of Regulation No 3, as well as from certain provisions of this Regulation (as for example Article 9 (1) and (2)), as well as from Regulation No 4 of the Council of the EEC ‘Regulation No 4 on implementing procedures and supplementary provisions in respect of Regulation No 3 concerning social security for migrant workers’ (OJ 16 December 1958, p. 597 et seq.), and in particular Articles 8 (c), 9 (4), 13 (1) (b) and lastly, indirectly, Article 7 of Regulation No 73/63 of the Council of the EEC of 11 July 1963 (OJ 24 July 1963, p 2011).The exclusive application of the law of the State in which the insured person is employed cannot, consequently, be inferred from Article 12 except in the cases when all the legal systems concerned make provision for compulsory insurance in respect of which the person insured or his employer must pay contributions. In this respect it must also be remembered that Community law sometimes accepts the principle of a right to double benefits, but that it includes no express provision directed towards avoiding double contributions; for this reason Article 12 must, in the first place, be regarded as being the provision in tended to serve this purpose.Lastly the Commission submits more detailed observations in respect of certain French and Netherlands regulations. According to Articles 511 and 513 of the French Social Security Code, the wife of a man employed abroad has the right to family allowances for her children resident in France if she herself is not in employment. Furthermore certain Netherlands laws, among them the AWW, which is relevant in the present case, make provision for social security benefits which are not linked to the exercise of working activities. Nevertheless, unlike the provisions of French law mentioned above the Netherlands laws provide for compulsory contributions from every employed person. They belong, therefore, to those bodies of rules which cannot be applied simultaneously with the provisions of the legal system referred to in Article 12 of Regulation No 3.
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