Opinion of the Advocate General — ECLI:EU:C:2015:96
Date: 2015-02-12
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 4 June 2015 1. Social security — Migrant workers — Legislation applicable — Simultaneous application of more than one national legislation — Excluded — System of conflict rules — Completeness — Objectives (Council Regulation No 1408/71, Art. 13) 2. Social security — Migrant workers — Sickness insurance — Pensioners entitled to draw pensions under the legislation of two Member States and resident in one of those States — Right to benefits in kind in the State of residence — Concept of pensions ‘payable’ — Scope (Council Regulation No 1408/71, Art. 27 and Annex VI, section R, point 1(a) and (b)) 3. Social security — Migrant workers — Sickness insurance — Pensioners entitled to draw pensions under the legislation of two Member States and resident in one of those States — Right to benefits in kind in the State of residence — National legislation not allowing the recipient of a pension awarded by that Member State with retroactive effect of one year to become affiliated to compulsory health insurance with the same retroactive effect — Not permissible (Council Regulation No 1408/71, Arts 27 and 84a and Annex VI, section R, point 1(a) and (b)) 1. See the text of the decision. (see paras 37-40, 45) 2. Article 27 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, in conjunction with section R, point 1(a) and (b), of Annex VI to Regulation No 1408/71, must be interpreted as meaning that the pension of a person entitled must be regarded as payable from the commencement of the period in respect of which that pension was actually paid to that person, whatever the date on which the entitlement to that pension was formally confirmed, including, if appropriate, where the period commences before the date of the decision awarding the pension. Any other interpretation of the term ‘payable’ within the meaning of Article 27 would make the temporal applicability of the competence of a Member State in respect of benefits due under that regulation depend on the speed with which national administrations deal with requests for pensions, which would run counter to one of the objectives of that regulation, namely to ensure that all insured persons falling within its scope enjoy continuous cover. (see paras 45, 59, operative part) 3. Articles 27 and 84a of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, in conjunction with section R, point 1(a) and (b), of Annex VI to Regulation No 1408/71, must be interpreted as precluding legislation of a Member State which does not allow the recipient of a pension awarded by that Member State with retroactive effect of one year to become affiliated to compulsory health care insurance with the same retroactive effect, and which has the effect of depriving that person of all social security cover without all the relevant circumstances, in particular those relating to that person’s personal situation, being taken into account. It may indeed be legitimate for a Member State to restrict the possibility of taking out health care insurance with retroactive effect, with the aim of encouraging persons who are obliged to take out such insurance to do so as quickly as possible. However, the conditions of affiliation to the social security schemes of the Member States, the organisation of which is within their powers, must comply with EU law and must not have the effect of excluding from the scope of national legislation persons to whom that legislation applies pursuant to Regulation No 1408/71. The effectiveness of the system of conflict rules established by that regulation, which is mandatory both for the Member States and for the persons concerned, cannot be guaranteed if those States, through their national legislation, are able to make it impossible for persons to comply fully with their obligations under that regulation. Moreover, under Article 84a(2) of Regulation No 1408/71, a failure to respect the obligation of information referred to in the third subparagraph of Article 84a(1) may result only in the application of proportionate measures in accordance with national law, which must be equivalent to those applicable to similar situations under domestic law and must not make it impossible or excessively difficult in practice for claimants to exercise the rights conferred on them by that regulation. (see paras 48, 49, 53, 57, 59, operative part)