Opinion of the Advocate General — ECLI:EU:C:2005:108
Date: 2005-02-24
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Social security for migrant workers – Applicable legislation – Person having ceased all occupational activity in one Member State and having transferred his residence to another Member State — Legislation of the first Member State providing for voluntary insurance in respect of certain branches of the scheme of that State — Breach of the principle of application of a single social security system — None (Council Regulation No 1408/71, Art. 13) 2. Social security for migrant workers — Powers of the Member States to organise their social security systems — Limits — Compliance with Community law — Treaty rules on freedom of movement for workers (Art. 39 EC) 3. Social security for migrant workers — Affiliation to a social security scheme — Person having ceased all occupational activity in one Member State and having transferred his residence to another Member State — Legislation of the first Member State making compulsory insurance in respect of certain branches of that scheme subject to a residence requirement — Conditions relating to voluntary insurance less favourable than those relating to compulsory insurance — Not permissible (Art. 39 EC) 1. The principle that a single social security system is to apply, as laid down in Article 13(1) of Regulation No 1408/71, in the version amended by Regulation No 2195/91, is not called into question by the application of a rule of a Member State giving non-resident persons the opportunity, after they have ceased all occupational activity in that Member State, to remain insured on an optional basis, under the legislation of that State, in respect of the branches for which they are no longer compulsorily insured. The provisions of Title II of that regulation, of which Article 13 forms part, are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them. It is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme, including those concerning termination of insurance. (see paras 33-34, 37-38) 2. Although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, comply with Community law and, in particular, the provisions of the EC Treaty on freedom of movement for workers. (see para. 39) 3. Article 39 EC precludes legislation of a Member State pursuant to which a person who has ceased all occupational activity in its territory remains compulsorily insured in respect of some branches of social security only if he continues to reside there, whilst that person remains compulsorily insured under the legislation of that Member State in respect of certain other branches of social security even if his residence is in another Member State, in circumstances where the conditions relating to voluntary insurance, in respect of the branches for which compulsory insurance has ceased, are less favourable than those relating to compulsory insurance. Such legislation places non-residents in a less favourable position than residents with regard to their social security cover, and therefore undermines the principle of free movement secured by Article 39 EC. (see paras 44-45, operative part)