Opinion of the Advocate General — ECLI:EU:C:1999:45
Date: 1999-02-02
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary 
I — Introduction I - 1921 
II — The legal context I - 1922 
A — The national provisions I - 1922 
(a) German law I - 1922 
(b) The Netherlands legislation I - 1922 
Β — The Community legislation I - 1923 
III — The facts I - 1926 
IV — The questions referred I - 1927 
V — The reply to the questions I - 1927 
A — The first question I - 1927 
(a) The validity of the relevant provisions of the Annex I - 1929 
(b) The implications of the interpretation of the relevant provisions of the 
annex I - 1931 
(c) The possible direct application of Articles 48 and 51 of the Treaty .. I - 1933 
(d) The necessary clarification of the Vougioukas case-law I - 1940 
Β — The second question I - 1943 
VI — Conclusion I - 1945 
I — Introduction 
1. With this reference for a preliminary ruling 
under Article 177 of the EC Treaty, the Cen­
trale Raad van Beroep (Netherlands), which 
is required to give a decision at second instance 
in proceedings brought by the appellant, 
Mr Nijhuis, against the Landelijk Instituut 
Sociale Verzekeringen (National Institute for 
Social Security) ('the LISV), has referred to 
the Court two questions concerning the inter­
pretation of Point 4(a) of Section J, relating to 
the Netherlands, of Annex VI to Council 
Regulation (EEC) N o 1408/71 of 14 June * Original language: Greek. 
I -1921 
OPINION OF MR COSMAS — CASE C-360/97 
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,1 and 
of Point 2(b) of Section J, relating to the 
Netherlands, of Annex 2 to Council Regula­
tion (EEC) N o 574/72 of 21 March 1972 
laying down the procedure for implementing 
Regulation N o 1408/71. 2 In particular, the 
Court is asked to state whether an insurance 
period completed in the Netherlands under a 
special scheme for civil servants must be 
treated as an insurance period completed 
under the general scheme, so as to enable a 
migrant worker within the Community, who 
was found to be incapacitated for work in 
another Member State, to receive pro rata 
Netherlands benefits. 
II — The legal context 
A — The national provisions 
(a) German law 
2. Under the general scheme of the Ange­
stelltenversicherungsgesetz (Law on Insurance 
for Clerical Staff), the amount of an invalidity 
benefit depends on the duration of insurance 
periods completed under that law. In other 
words, it is calculated pro rata temporis (type 
B legislation, as classified by the Court in the 
Grahame and Hollanders judgment of 13 
November 1997). 3 
(b) The Netherlands legislation 
3. The present case involves two different 
laws: 
(1) The Algemene Burgerlijke Pensioenwet 
(General Law on Civil Pensions, 6 January 
1966, 'the ABPW), in the version in force at 
the time when Mr Nijhuis was working in 
the Netherlands. It is common ground that 
this was a special scheme applying only to 
civil servants. 4 Mr Nijhuis was insured in the 
Netherlands under this scheme alone, which, 
like all invalidity insurance schemes in the 
Netherlands, was a so-called risk scheme (type 
A), where the entitlement to the benefit arises 
on the occurrence of the insured risk during 
the insurance period. 
1 — OJ, English Special Edition 1971 (II), p. 416. 
2 — OJ 1972 L 74, p. 1. 
3 — Case C-248/96 [1997] ECR I-6407, paragraph 14. 
4 — For the definition of a special scheme for civil servants and 
persons treated as such, see the judgment in Case C-443/93 
Vougioukas [1995] ECR 1-4033, paragraphs 23 to 27. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
(2) The Wet op de Arbeidsongeschiktheids­
verzekering (Law relating to Insurance against 
Incapacity for Work, 18 February 1966, 'the 
WAO'), which introduced compulsory insur­
ance for workers against invalidity. Under this 
law, the entitlement to the benefit arises if the 
person concerned is insured at the time when 
incapacity for work occurs (type A scheme) 
and remains incapacitated for work for 52 
weeks without interruption. The amount of 
the benefit is calculated by reference to the 
degree of invalidity and the daily salary of the 
person concerned. 
Under the WAO, which came into force on 
1 July 1967, no insurance period prior to that 
date can be taken into account. Furthermore, 
civil servants and military personnel were 
excluded from its scope (Article 6(1)). On the 
other hand, as from 1 October 1976 they were 
covered by the Algemene Arbeidsongeschikt­
heidswet (General Law on Incapacity for 
Work, 11 December 1975, 'the AAW'), which 
also introduced a scheme based on risk 
(type A). 
Β — The Community legislation 
4. Article 48 of the EEC (now the EC) Treaty 
enshrines the principle of freedom of move­
ment for workers, but paragraph 4 states that 
'the provisions of this Article shall not apply 
to employment in the public service'. 
5. In addition, Article 51 of the EEC (now 
the EC) Treaty provides as follows: 
'The Council shall, acting unanimously on a 
proposal from the Commission, adopt such 
measures in the field of social security as are 
necessary to provide freedom of movement 
for workers; to this end it shall make arrange­
ments to secure for migrant workers and their 
dependants: 
(a) aggregation, for the purpose of acquiring 
and retaining the right to benefit and of 
calculating the amount of benefit, of all 
periods taken into account under the laws 
of the several countries; 
(b) payment of benefits to persons resident 
in the territories of Member States.' 
6. O n the basis of Article 51, the Council 
adopted Regulations Nos 1408/71 and 574/72, 
the main aim of which is to coordinate the 
laws of the several countries in the sector in 
question, so that freedom of movement for 
workers does not have the effect of placing 
those who exercise that freedom in a less 
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OPINION OF MR COSMAS — CASE C-360/97 
favourable position than those who work in 
a single Member State. 
7. Article 4(4) of Regulation N o 1408/71 (in 
the version in force at the material time in the 
main proceedings, that is to say, the version 
amended and updated by Council Regulation 
(EEC) N o 2001/83 of 2 June 1983 5 ) , pro­
vides as follows: 
'4. This Regulation shall not apply to ... spe­
cial schemes for civil servants and persons 
treated as such.' 
8. Article 40(1) of Regulation N o 1408/71 (in 
the version in force at the material time in 
this case), relating to the conditions for the 
grant of invalidity benefit where a worker has 
been subject to the legislations of different 
Member States in succession, at least one of 
which does not cause the amount of benefits 
to depend on the duration of insurance periods 
(type A legislation, such as the Netherlands 
legislation in this case), refers for the calcula­
tion of benefits to Chapter 3, relating to old 
age and death pensions, and in particular to 
Article 46, concerning the calculation of ben­
efits by each of the national insurance institu­
tions in question. Under Article 46(2), the 
benefits are to be calculated in proportion to 
the periods of insurance completed under the 
legislation of each Member State to which the 
person concerned has been subject, including 
legislation where the amount of the invalidity 
benefit does not depend on the length of 
periods of insurance. 
9. In addition, Article 45(4) of Regulation 
N o 1408/71 (in the version in force at the 
material time in this case 6 ) , which aimed to 
safeguard the coexistence of type A and type 
Β schemes, in principle permitted workers 
receiving invalidity pensions on the basis of 
the legislation of another Member State to 
receive also the Netherlands benefits payable 
under the WAO. 
10. With regard to the Netherlands legisla­
tion relating to insurance against incapacity 
for work, Point 4(a) of Section J, relating to 
the Netherlands, of Annex VI to Regulation 
N o 1408/71 (in the version in force at the 
5 — OJ 1983 L 230, p. 6. 
6 — 'Where the legislation of a Member State which makes the 
granting of benefits conditional upon an employed person 
being subject to its legislation at the time when the risk mate­
rialises has no requirements as to the length of insurance 
periods cither for entitlement to or calculation of benefits, 
any employed person who is no longer subject to that legisla­
tion shall, for the purposes of this Chapter, be deemed to be 
still so subject at the time when the risk materializes, if at that 
time he is subject to the legislation of another Member State 
or, failing this, can establish a claim to benefits under the leg­
islation of another Member State. However, this latter condi­
tion shall be deemed to be satisfied in the case referred to in 
Article 48(1).' 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
material time in the main proceedings) pro­
vided as follows: 
'For the purpose of applying Article 46(2) of 
the Regulation, Netherlands institutions will 
respect the following provisions: 
(a) if, when incapacity for work or the 
resultant invalidity occurred, the person 
concerned was an employed person within 
the meaning of Article 1(a) of the Regula­
tion, the competent institution shall fix 
the amount of cash benefits in accordance 
with the provisions of the law of 18 Feb­
ruary 1966 on insurance against in­
capacity for work (WAO), taking account 
of: 
— insurance periods completed under the 
abovementioned law of 18 February 
1966 (WAO), 
— insurance periods completed after the 
age of 15 under the law of 11 December 
1975 on incapacity for work (AAW), 
provided that they do not coincide 
with insurance periods completed by 
the person concerned under the above-
mentioned law of 18 February 1966 
(WAO), and 
— periods of paid work and equivalent 
periods completed in the Netherlands 
before 1 July 1967.' 
11. Finally, in accordance with Point 2(b) of 
Section J of Annex 2 to Regulation N o 574/72, 
in the version in force at the material time in 
the main proceedings, the competent institu­
tion under the Netherlands legislation for 
paying the invalidity benefit is the Nieuwe 
Algemene Bedrijfsvereniging (New General 
Professional and Trade Association, 'the 
NAB', which was replaced on 1 March 1997 
by the LISV, the respondent in the main pro­
ceedings) where employed and self-employed 
workers are not entitled, without application 
of the regulation, to benefits under Nether­
lands legislation alone. 
Moreover, Article 84 of Regulation N o 
1408/71 (in the version in force at the mate­
rial time in the main proceedings) provides 
for the exchange of information and for the 
competent authorities and institutions of the 
Member States to lend each other their good 
offices and to cooperate in the implementa­
tion of the regulation. 
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OPINION OF MR COSMAS — CASE C-360/97 
Simultaneously, Article 86 of Regulation No 
1408/71 (in the version in force at the mate­
rial time in the main proceedings) requires 
claims, declarations or appeals submitted to 
an authority, institution or court of a Member 
State other than the competent State to be 
forwarded without delay to the competent 
authority or institution of the competent 
Member State. The provisions of this article 
ensure that the submission of claims, declara­
tions or appeals for the first time to a non-
competent authority, institution or court 
cannot have adverse consequences with regard 
to admissibility or time-limits. 
III — The facts 
12. The appellant in the main proceedings, 
Mr Nijhuis, a Netherlands national, worked 
in the Netherlands from 15 October 1968 to 
1 October 1973 as a scientific research assist­
ant with the Netherlands Organisation for 
Research in the Field of Pure Science in The 
Hague, and from 1 August 1973 to 1 April 
1974 as a teacher in Tilburg. During these 
periods he was insured against the risk of 
invalidity under the ABPW. Outside these 
periods he did no work in the Netherlands, 
not even on a self-employed basis. 
13. Subsequently he worked in Germany, 
where he was insured from 1 April 1974 to 1 
April 1988 under the general scheme of the 
Angestelltenversicherungsgesetz. On 29 
March 1988 he was found to be incapacitated 
for work. By decision of 4 September 1989 
the Bundesversicherungsanstalt für Ange­
stellte (Federal Insurance Office for Clerical 
Staff) awarded him an invalidity pension as 
from 9 November 1988. The pension was cal­
culated on the basis of the insurance periods 
completed in Germany, without taking into 
account those completed in the Netherlands. 
14. Mr Nijhuis claimed an invalidity benefit 
from the Algemeen Burgerlijk Pensioenfonds 
(General Civil Service Pension Fund, 'the 
ABPF'). When his claim was rejected, he did 
not respond. 
By decision of 31 January 1990 the NAB, as 
the institution responsible for the award of 
invalidity benefits under the WAO, and which 
had been contacted by the competent German 
authority, rejected his claim on the grounds 
that he was not insured under the WAO or 
the AAW when his incapacity for work arose 
and that he could not rely on Regulation N o 
1408/71 because, when he was employed in 
the Netherlands, he was insured under the 
ABPW scheme, which was a special scheme 
for civil servants and was outside the ambit of 
that regulation. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
15. The appellant in the main proceedings 
referred the decision of the NAB to the Raad 
van Beroep te Amsterdam (Appeal Court, 
Amsterdam), which dismissed his action. He 
then appealed to the Centrale Raad van Beroep 
te Utrecht. 
IV — The questions referred 
16. The Centrale Raad van Beroep took the 
view that the following questions should be 
referred to the Court under Article 177 of the 
Treaty: 
' 1 . When applying Article 46(2) in conjunc­
tion with Article 45(4) of Regulation 
(EEC) N o 1408/71, and on the basis of 
Articles 48 and 51 of the EC Treaty, is 
Point 4(a) of Section J 7 of Annex VI to 
Regulation N o 1408/71 (in the version 
in force at the material time) to be inter­
preted as meaning that, in the case of a 
person who has worked exclusively in 
the Netherlands in the period from 15 
October 1968 to 1 April 1974 and who 
was insured throughout that period 
against invalidity under a special scheme 
for civil servants, that period should also 
be taken into account in accordance 
with that section of the annex when 
determining invalidity benefits? 
2. If so, is the competent institution for the 
determination of benefits on the basis of 
those periods the institution referred to 
in Point 2(b) of Section J of Annex 2 to 
Regulation (EEC) N o 574/72 or is it the 
competent institution under national law 
in regard to invalidity insurance for civil 
servants, notwithstanding the fact that 
the latter institution is not referred to in 
the said annex?' 
V — The reply to the questions 
A — The first question 
17. The facts of the main proceedings led the 
Centrale Raad van Beroep to refer to the 
Court a question on the interpretation of 
Point 4(a) of what was at the material time 
Section I (now Section J as a result of the 
accession of the Portuguese Republic and the 
Kingdom of Spain) of Annex VI to Regula­
tion N o 1408/71, in the light of Articles 48 to 
51 of the Treaty. The question is probably 
explained by the observation, made by the 
respondent in the main proceedings, the Neth­
erlands Government and the Commission, 7 — Footnote not affecting English translation of the question. 
I -1927 
OPINION OF MR COSMAS — CASE C-360/97 
that, according to the wording of the relevant 
provisions of Annex VI to Regulation N o 
1408/71 (in the version in force at the mate­
rial time), only insurance periods completed 
under the WAO and AAW schemes can, since 
the entry into force of the WAO, be taken 
into account for the purpose of Article 46(2) 
in conjunction with Article 45(4) of the regu­
lation. Therefore the insurance periods com­
pleted by Mr Nijhuis between 15 October 
1968 and 1 April 1974 under the ABPW 
scheme cannot be taken into account, if only 
because they were completed after the entry 
into force of the WAO and before that of the 
AAW In view of this, it is clear that the 
national court is asking the Court of Justice 
to reply to the question whether the literal 
interpretation of the provisions in question is 
binding or whether the national court may, in 
one way or another, avoid it. 
18. On this point it must be observed that, 
after taking account of the Commission's pro­
posal to amend Regulation N o 1408/71 8 and 
the Vougioukas judgment, 9 the Council finally 
decided to amend the said regulation by Regu­
lation (EC) N o 1606/98 of 29 June 1998, 
which extends its scope to special schemes for 
civil servants. 10 
It is also worth mentioning that, as appears 
from a letter of 5 October 1998 to 
Mr Nijhuis, a copy of which has been sent to 
the Court, the competent institution in the 
main proceedings proposes, following the 
abovementioned amendment of Regulation 
N o 1408/71 by Regulation N o 1606/98, to 
grant Mr Nijhuis a right to pro rata benefits 
under the WAO as from 25 October 1998, 
the date when the new provisions took effect. 
The same institution points out that it will 
take account of insurance periods completed 
by him pursuant to the ABPW between 15 
October 1968 and 1 April 1974. 
This declared intention on the part of the 
respondent in no way affects the subject-
matter of the main proceedings or, conse­
quently, the usefulness of the reply to be given 
to the national court in so far as, in any case, 
the question arises as to whether Mr Nijhuis 
is entitled to Netherlands benefits for the 
period prior to 25 October 1998. 11 
19. To begin with, it should be observed that 
the reply to the question before the Court 
follows from the case-law principles set out 
in the Vougioukas judgment. Therefore the 
examination of the question must deal with 
the main elements of the problems in that 
judgment: these questions relate, first, to (a) 
the validity of the relevant provisions of 
Annex VI to Regulation N o 1408/71, in the 
version in force at the material time, and (b) 
the implications of their interpretation and, 
8 — OJ 1992 C 46, p. 1. 
9 — Cited in footnote 4. 
10 — OJ 1998 L 209, p. 1. 
11 — In this connection it must be noted that Article 1, point 11 
of Regulation No 1606/98 adds to Regulation No 1408/71 a 
new article (95c), paragraph (1) of which provides that 'no 
rights shall be acquired under Regulation (EC) No 1606/98 
for any period prior to 25 October 1998.' 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
secondly, (c) the direct effect, if any, of Articles 
48 and 51 of the Treaty. Finally, the discus­
sion of these points will show (d) the need 
to clarify the principles of the Vougioukas 
judgment. 
(a) The validity of the relevant provisions of 
the Annex 
20. Is a literal interpretation of the relevant 
provisions of Annex VI to Regulation N o 
1408/71 consistent with Articles 48 and 51 of 
the Treaty in so far as such interpretation 
leads to insurance periods completed under 
the special scheme for civil servants of the 
ABPW being disregarded and to Mr Nijhuis 
being refused pro rata Netherlands benefits? 
21. The relevant provisions of Annex VI to 
Regulation N o 1408/71 must be interpreted 
in conjunction with the other provisions of 
the same regulation. 1 2 O n this basis it is clear 
that, as the respondent institution in the main 
proceedings observes, if the annex makes no 
mention of insurance periods completed under 
the ABPW scheme, the reason is precisely 
that this scheme is a special scheme for civil 
servants who, pursuant to Article 4(4) of the 
regulation (in the version in force at the 
material time), are outside the scope of the 
regulation. Consequently the same principles 
as for Article 4(4) must be applied to the pro­
visions in question of the annex. 
22. In particular, in the Vougioukas judgment 
cited in footnote 4, the Court observed that, 
by not introducing, following the expiry of 
the transitional period laid down for freedom 
of movement for workers, any coordination 
measure for extending the material scope of 
Regulation N o 1408/71 to special schemes for 
civil servants and persons treated as such, the 
Council had not fully discharged its obliga­
tion under Article 51 of the Treaty to set up 
a system to enable migrant workers to over­
come obstacles with which they might be 
confronted in national social security rules. 1 3 
Whereas, in the case of civil servants, their 
potential freedom of movement was enlarged 
by strict interpretation of the exception laid 
down by Article 48(4) of the Treaty,1 4 the 
Council's prolonged hesitation in providing 
for the coordination of special insurance 
schemes for workers in that category has been 
12 — See the judgment in Case C-227/94 Olivieri-Coenen [1995] 
ECR I-3301, paragraph 16. 
13 — See the Vougioukas judgment, cited in footnote 4, para­
graphs 30 to 34. 
14 — Adopting a functional approach to the term 'public service', 
the Court found that the exception laid down in Article 
48(4) applied only to posts with the characteristics of spe­
cific activities of the public service, in so far as persons in 
those posts have powers conferred by public law and are 
responsible for safeguarding the general interests of the State, 
whereas public service posts in the fields of, for example, 
health, education, art and science (research centres), etc. do 
not fall within the scope of Article 48(4). Sec, in particular, 
the judgments in Case 149/79 Commission ν Belgium [1982] 
ECR 1845; Case 307/84 Commission ν France [1986] ECR 
1725; Case 66/85 Lawrie-Blum [1986] ECR 2121, and Case 
225/85 Commission ν Italy [1987] ECR 2625. 
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OPINION OF MR COSMAS — CASE C-360/97 
a considerable obstacle to exercising the 
freedom of movement and it may well be 
asked whether such hesitation was consistent 
with the aims of the Treaty. 
23. While finding that the prolonged failure 
to act was unjustified, the Court took the 
view that the validity of Article 4(4) of Regu­
lation N o 1408/71 was not affected since, 
having regard to the Council's wide discre­
tion with regard to the choice of the most 
appropriate measures for attaining the objec­
tive of Article 51 of the Treaty, the Council 
remained at liberty, for the purpose of coor­
dinating special schemes for civil servants and 
persons treated as such, to depart, in some 
respects at least, from the mechanisms pro­
vided for in the regulation . 1 5 
24. As I said in my Opinion in the Grahame 
and Hollanders case, cited in footnote 3, the 
above interpretation is consistent with the 
nature of the regulation as a means of coor­
dinating, not harmonising, the laws of the 
Member States relating to social security and 
it shows that the fact that a person is a civil 
servant who may exercise his freedom of 
movement under Article 48 of the Treaty does 
not automatically guarantee him the benefit 
of the provisions of the regulation. That is 
because, whereas the abovementioned article 
of the Treaty applies on the basis of the 
objective characteristics of the employment 
relationship with the public service, the regu­
lation applies by reason of a person's belonging 
to a national social security scheme which is 
covered by the regulation, in other words, by 
virtue of belonging to a general social secu­
rity scheme. However, membership of such a 
scheme is subject to substantive conditions 
laid down by the national legislature by virtue 
of its perfectly legitimate freedom to regulate 
the social security sector.16 
25. Consequently there appears to be no 
question of conflict between the relevant pro­
visions of Annex VI (in the version in force 
at the material time) and Articles 48 and 51 
of the Treaty in so far as those provisions do 
not refer to the ABPW for determining the 
periods to be taken into account in order to 
calculate pro rata invalidity benefits. In addi­
tion, the fact that the WAO does not apply 
to civil servants (Article 6) and that, under 
the Netherlands social insurance legislation, 
they were covered by the special scheme 
(ABPW) for the period in question from 15 
October 1968 to 1 April 1974 does not affect 
the validity of the provisions of the regula­
tion but is a result, as I have already said, of 
15 — See the Vougioukas judgment, cited in footnote 4, paragraph 
35. 
16 — See paragraph 48 of my opinion in the Grahame and Hol­
landers case, cited in footnote 3. 
In accordance with the foregoing, the fact that Mr Nijhuis 
was employed in the public service could not lead, as he 
himself states, to limiting his freedom of movement within 
the Community. However, the Court, modifying in this 
respect the position it adopted in the Lohmann judgment 
(Case 129/78 [1979] ECR 853, paragraph 3), found that the 
term 'civil servant' in Article 4(4) ofRcgulation N o 1408/71 
refers not only to civil servants covered by the derogation 
provided for in Article 48(4). The Court thereby recognised 
that the scope ratione personae of the regulation includes all 
civil servants employed by a public authority who exercise 
their freedom of movement within the Community (see the 
Vougioukas judgment, cited in footnote 4, paragraph 21). 
However, it must be observed that the fact of being within 
the scope ratione personae of the regulation docs not auto­
matically mean that it applies to such persons because its 
scope ratione materiae (in the version in force at the mate­
rial time) does not include the coordination of special schemes 
for civil servants, such as that of the ABPW. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
the legitimate freedom of regulation of the 
Netherlands legislature. 17 
(b) The implications of the interpretation of 
the relevant provisions of the annex 
26. Just as, since the Vougioukas judgment, 
the Court has avoided ruling that provisions 
of Regulation N o 1408/71 are invalid, 18 so 
also, it appears, does it avoid confining itself 
to the literal wording of the provisions of the 
regulation, and rather seeks to give them a 
purposive, 19 and sometimes even a maximal­
ist, 2 0 interpretation, so as to ensure the fullest 
possible attainment of the objectives of 
Articles 48 and 51 of the Treaty. 
27. Could such an interpretation lead, with 
regard to the question of taking account of 
Mr Nijhuis' periods of insurance, to an answer 
different from that to which a literal interpre­
tation of the provisions of the annex appears 
to lead, in view of the Vougioukas judgment? 
More particularly, would it be possible to 
apply the Olivieri-Coenen judgment, cited in 
footnote 11, to the facts of the present case? 
In that judgment, the Court held that it was 
clear from the provisions in question of Annex 
VI to Regulation N o 1408/71 (in the version 
in force at the material time) that, on the 
basis of the WAO, all periods of paid employ­
ment or periods treated as such prior to 1 
July 1967, the date when the WAO came into 
force, 21 had to be taken into account, irre­
spective of the scheme under which the person 
concerned was insured against invalidity 
during those periods. This conclusion could 
not be altered by the fact that the scheme in 
question was a special scheme for civil ser­
vants. 2 2 In view of the abovementioned 
17 — For an assessment of the validity of Annex I to Regulation 
N o 1408/71, see the judgment in Case C-266/95 Merino 
Garcia [1997] ECR I-3279, paragraphs 27 to 31, and the 
opinion of Advocate General Fennelly in that case (para­
graph 28). 
18 — Certain provisions had been ruled invalid before that judg­
ment. See, for example, the judgment in Case 41/84 Pinna 
[1986] ECR 1, which ruled that Article 73(2) of the regula­
tion, concerning family allowances, was invalid because it 
was incompatible with the principle of equal treatment laid 
down in Article 48 of the Treaty, and the judgment in Case 
20/85 Roviello [1988] ECR 2805, which ruled that point 15, 
Part C of Annex VI to the regulation was invalid, again 
because it was incompatible with that principle. 
19 — In an interpretation of point 4(a) of Annex VI to Regula­
tion N o 1408/71, the Court held, in the Olivieri-Coenen 
judgment, cited in footnote 12, that the provisions of the 
annex and the other provisions of the regulation must be 
interpreted together in the light of the purpose of that article, 
which is to contribute to freedom of movement for migrant 
workers, a principle which is one of the foundations of the 
Community (paragraph 16). With regard to the purposive 
interpretation of the regulation, see my opinion (paragraph 
21 et seq.) in Case C-475/93 Thévenon [1995] ECR I-3813). 
20 — See, for example, the Grahame and Hollanders judgment, 
cited in footnote 3, where, in relation to the interpretation 
of 'periods of paid employment' and 'periods treated as 
such', compared with periods of military service completed 
before 1 July 1967, the Court found in effect that the provi­
sions of the regulation could have a Community content, 
that is to say, relatively independent of national law, and 
determined in relation to the objectives of Community leg­
islation, i.e. the objectives of Articles 48 and 51 of the 
Treaty (paragraphs 21 and 25 to 32). 
21 — See also the Grahame and Hollanders judgment, cited in 
footnote 3, paragraph 24. 
22 — See the Olivieri-Coenen judgment, cited in footnote 12, 
paragraphs 15 and 16. As the Court observed in that judg­
ment, 'if the period of paid employment subject to the spe­
cial scheme for civil servants or persons treated as such was 
not treated as a period of insurance for the purposes of 
Annex V to the regulation [point 4(a) of the section on the 
Netherlands], the person completing it would thereby suffer 
a disadvantage contrary to Article 51 of the Treaty whereas 
to take that period into account does not entail any overlap­
ping of different entitlements' (paragraph 17). 
I -1931 
OPINION OF MR COSMAS — CASE C-360/97 
judgment, is it possible that insurance periods 
completed under the special scheme for civil 
servants after 1 July 1967, as were those of 
Mr Nijhuis, must be taken into account in 
relation to the WAO scheme, even if as periods 
of employment? 
28. In my opinion, the application by analogy 
of the Olivieri-Coenen judgment to the 
present case is not justified by the spirit of 
that judgment or by the scope for interpreta­
tion which it may allow, or by the systematic 
interpretation of the relevant provisions of 
the annex. 
As the Commission points out, the interpre­
tation of the annex given in the Olivieri-
Coenen judgment does not constitute an 
exception to the exclusion of special schemes 
for civil servants which is laid down by Article 
4(4) of Regulation N o 1408/71 because the 
person concerned derives no pension entitle­
ment from that scheme. On the other hand, 
periods completed before 1 July 1967 are 
taken into account for calculating benefits 
under the general scheme, that of the WAO. 
In other words, those periods are treated as 
periods of employment, not as insurance 
periods, as expressly laid down by the rel­
evant provisions of the annex. Consequently 
the obligation to take them into account does 
not depend on the type of scheme by which 
the person concerned was covered during 
those periods. 23 
From 1 July 1967 — and the insurance periods 
completed by Mr Nijhuis are subsequent to 
that date — Annex VI refers expressly to 
insurance periods completed under the WAO 
or the AAW. Insurance periods completed 
under any other scheme could not be taken 
into account, even as periods of employment, 
because to classify them as such would be 
contrary to the express terms of the annex, 
which contrasts periods of paid work before 
1 July 1967 with insurance periods completed 
after the WAO came into force. 
Moreover, a purposive interpretation of the 
annex, so as to take account of insurance 
periods completed under the ABPW, seems 
to be ruled out from the systematic view­
point. The relevant provisions of the annex 
were introduced in order to ensure that per­
sons who had worked before the WAO scheme 
took effect 24 had uniform insurance cover 
similar to that of persons who completed 
insurance periods under that scheme. Since 
the WAO came into force, only insurance 
periods completed under the WAO or the 
AAW schemes have been taken into account. 
This applies particularly to periods completed 
under special schemes for civil servants. As 
the respondent institution in the main pro­
ceedings and the Netherlands Government 
point out, it would be truly paradoxical to 
23 — See paragraphs 12 and 13 of the Opinion of Advocate 
General Lenz in the Olivieri-Coenen judgment, cited in 
footnote 12. 
24 — As the respondent in the main proceedings observes, the 
purpose of the operation was to enable migrant workers to 
avoid the unfavourable consequences of the transition from 
the former scheme, that of the Invaliditeitswet to the so-called 
risk scheme of the WAO. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
interpret a coordination rule in such a way as 
to take account of insurance periods which 
are expressly excluded from the scope of the 
regulation. Such an interpretation would be 
conceivable only if it were accepted that 
Article 4(4) of the regulation (in the version 
in force at the material time) is invalid because 
it is contrary to Articles 48 and 51 of the 
Treaty. However, this would be to ignore the 
Vougioukas judgment, cited above, which 
expressly settled the question by rinding that 
Article 4(4) is valid. 2 5 
29. For the same reasons, it could not be said 
that there is a lacuna in the relevant provi­
sions of the annex with regard to insurance 
periods completed under the special scheme 
for civil servants after 1 July 1967 and up to 
1 October 1976. Although the Vougioukas 
judgment refers to a lacuna, this must be taken 
to refer to the continued failure to implement 
Article 51 of the Treaty, that is to say, the 
Council's prolonged failure to take action to 
coordinate the special schemes for civil ser­
vants, and it does not refer to a gap in the law 
in the strict sense, which would arise only if 
the legislation concerned were found to be 
invalid or were annulled, and the gap would 
have to be filled by the application of the 
former legislation or the application, by 
analogy, of other rules, or again by the appli­
cation of a more general rule. 
(c) The possible direct application of Articles 
48 and 51 of the Treaty 
30. Following the model of the Vougioukas 
judgment, the Commission proposes the direct 
application of Articles 48 and 51 of the Treaty, 
from which it follows, as it contends in its 
observations, that Mr Nijhuis must be paid a 
Netherlands benefit calculated pro rata to the 
insurance periods completed under the ABPW 
scheme. 
31. Indeed, although the said judgment did 
not question the validity of Article 4(4) of 
Regulation N o 1408/71, it found that the 
validity, thus defined, of the exclusion of the 
coordination of special schemes for civil ser­
vants did not mean that 'a request for aggre­
gation is to be refused when it may be satis­
fied, in direct application of Articles 48 and 
51 of the Treaty, without recourse to the 
coordination rules adopted by the Council'. 2 6 
32. Therefore, in order to decide whether the 
direct application of Articles 48 to 51 is pos­
sible and whether it actually gives rise to an 
entitlement to Netherlands benefits pro rata 
for Mr Nijhuis, it is necessary to examine 
25 — See paragraph 23 of the present Opinion. 
26 — See the Vougioukas judgment, cited in footnote 4, paragraph 
36. 
I-1933 
OPINION OF MR COSMAS — CASE C-360/97 
whether the conditions for the direct applica­
tion of those articles, as set out in the Vou­
gioukas judgment and construed in the Court's 
subsequent decisions, are fulfilled in the 
present case. 
33. According to the Vougioukas judgment, 
an essential condition for the direct applica­
tion of Articles 48 to 51 is, as indicated above, 
that it should be unnecessary to have recourse 
to the coordination rules adopted by the 
Council, that is to say, in the present case the 
provisions of Regulation N o 1408/71. This 
condition is entirely consistent with the 
manner in which the Court found, in the 
abovementioned judgment, that Article 4(4) 
of the regulation is valid (in the version in 
force at the material time). 27 Therefore, even 
dismissing any suggestion of the direct appli­
cation of Article 51 as such, that is to say, as 
a provision requiring the adoption of essen­
tial measures of coordination (because the 
Council has a wide discretion with regard to 
choosing the measures for implementing the 
Treaty), nevertheless individuals may rely 
directly before the national courts on provi­
sions which the Treaty requires the Council 
to apply through Article 51. 28 In other words, 
because the entire margin of discretion of the 
political authorities lies between the obliga­
tion laid down in Article 51 of the Treaty and 
the application thereof, the direct application 
of Article 51 is not in effect conceivable. On 
the other hand, the direct application of Article 
48 is imperative, provided, of course, that it 
is not necessary to have recourse to the Com­
munity rules of coordination adopted on the 
basis of Article 51. 
This last condition was easily to fulfil in the 
factual circumstances in point in the Vou­
gioukas judgment, which did indeed apply 
the Treaty directly. In that case there was 
doubt as to the application of the legislation 
of a single Member State concerning the rec­
ognition of periods of employment completed 
in that State or in another Member State for 
the purpose of acquiring the right to a pen­
sion. In effect, it was not a question of tech­
nical coordination between different national 
social security schemes, but primarily of the 
applicability ratione personae of Regulation 
N o 1408/71 and the existence of a national 
provision entailing discrimination between 
workers who had moved within the Commu­
nity and the others. 
34. "with regard to the judgments which fol­
lowed the Vougioukas judgment, the Com­
mission contends in effect that the Court does 
not appear to attach particular importance to 
the abovementioned condition of direct appli­
cation of the articles of the Treaty. The Com­
mission refers specifically to the judgment in 
Joined Cases C-4/95 and C-5/95 29 in support 
of its argument that, first, direct application 
27 — See paragraph 23 of the present Opinion. 
28 — Specifically, as commentators have also observed, individuals 
may rely directly on the principles of freedom of movement 
for workers and equal treatment with regard to social secu­
rity, even as against Member States or in relation to provi­
sions of a Council regulation which is adopted on the basis 
of Article 51 and does not conform, in its wording or its 
application, to the objectives of the Treaty. See Commentaire 
Mégret, Le Droit de la CEE, vol. 3. Libre circulation des 
personnes, des services et des capitaux. Transport, 2ème édi­
tion, 1990. Éditions de l'Université de Bruxelles, Études 
européennes. Collection dirigée par l'Institut d'Études Europ­
éennes, pp. 99 and 100. 29 — Stöber and Piosa Pereira [1997] ECR I-511. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
of the Treaty is necessary to establish a right 
to pro rata benefits even for those who, like 
Mr Nijhuis, belonged during the relevant 
periods to special schemes for civil servants 
and, secondly, that the provisions of Annex 
VI to Regulation N o 1408/71 should be 
applied by analogy (because there were no 
specific Community provisions for the coor­
dination of special schemes for civil servants) 
for calculating the abovementioned pro rata 
benefits. 
35. In some cases the Court does seem to 
apply Article 48(2) of the Treaty directly 
without expressly considering whether the 
condition concerning the absence of a need to 
have recourse to the coordination rules 
adopted by the Council 30 is fulfilled. In the 
Stöber and Piosa Pereira judgment, it is true 
that the Court went so far as to state that the 
problems which could arise from the removal 
(because it was contrary to Article 52) of a 
residence condition required by the legisla­
tion of a Member State for the calculation of 
family benefits must be resolved by the appli­
cation, by analogy, of the provisions of Regu­
lation N o 1408/71. 31 However, the judg­
ments mentioned above cannot be interpreted 
as the Commission would wish in the present 
case. 
36. Firstly, it would appear from a closer 
examination of the case-law referred to by 
the Commission that the Court also considers 
the adoption by the Community legislature 
of the measures necessary for the implemen­
tation of the Treaty to be decisive for the pur­
pose of enabling the Treaty to be directly 
applied. Thus in the Stöber and Piosa Pereira 
judgment the Court expressly maintains the 
position it took in the Middleburgh judgment, 
according to which the legislation of a Member 
State which precluded the payment of child 
benefit in respect of the children resident in 
another Member State of a self-employed 
person was not incompatible with Article 52 
of the Treaty because at the material time the 
Council had not yet adopted measures imple­
menting that provision. 32 In other words, the 
Court finds that direct application of Article 
52 is precluded if applying it requires the 
adoption of certain measures beforehand — 
in the Middleburgh case, to ensure that the 
benefits were actually used for the mainte­
nance of dependent children and to avoid 
concurrent benefits — which the Community 
legislature had not taken. However, if — as 
happened in the case which led tó the Stöber 
and Piosa Pereira judgment — those mea­
sures have been taken, the national author­
ities may apply them by analogy so as to fill 
the gap arising from the non-application of 
national provisions incompatible with the 
Treaty. 
37. Secondly, it must be stressed that the 
case-law referred to by the Commission con­
cerns the direct application of the articles of 
30 — See the Stöber and Piosa Pereira judgment, cited in footnote 
29, and the Merino Garcia judgment, cited in footnote 17. 
On the other hand, in the related judgment in Case C-194/96 
Kulzer [1998] ECR I-895, the Court did not apply Article 
48(2) directly because, as Advocate General Fennelly pointed 
out (paragraph 61), the person concerned in that case was 
not a migrant worker. 
See also the judgment in Case C-53/95 Kemmler [1996] 
ECR I-703, where the Court applied Article 52 directly, 
finding that it precludes a Member State from requiring con­
tributions to be paid to the social security scheme for self-
employed persons by persons already working as self-
employed persons in another Member State where they have 
their habitual residence and are affiliated to a social security 
scheme, that obligation affording them no additional social 
security cover (paragraph 14). 
31 — See the Stöber and Piosa Pereira judgment, cited in footnote 
29, paragraph 40. 
32 — See the Stöber and Piosa Pereira judgment, cited in footnote 
29, paragraph 40, in conjunction with the judgment in Case 
C-15/90 Middleburgh [1991] ECR I-4655, paragraphs 14 
and 15. 
I -1935 
OPINION OF MR COSMAS — CASE C-360/97 
the Treaty and the possible application by 
analogy of Regulation No 1408/71 in the 
context of cases similar to the Vougioukas 
case, where the direct application of the Treaty 
relates mainly to the incompatibility with the 
Treaty of national measures of a discrimina­
tory nature, and not to the need to apply 
Community coordination measures. 33 How­
ever, I do not think that the Court's case-law 
on discrimination caused by national social 
security legislation can be applied in the 
present case. 
38. According to the Court's case-law, the 
body of provisions of the Treaty relating to 
the free movement of persons is thus intended 
to facilitate the pursuit by Community citi­
zens of occupational activities of all kinds 
throughout the Community, and precludes 
national legislation which might place Com­
munity citizens at a disadvantage when they 
wish to extend their activities beyond the ter­
ritory of a single Member State. 34 
Therefore the direct application of Article 48 
et seq. of the Treaty means not only that the 
national provisions must not lead to discrimi­
nation on grounds of nationality between 
nationals of the host State and nationals of 
other Member States, 35 but also that they 
must not lead to discrimination between those 
who exercise their freedom of movement and 
those who do not. 36 That is why, as the 
Commission says in its observations, the 
Court determines whether such discrimina­
tion exists by comparing the situation of the 
33 — For example, after finding, in the Stöber and Piosa Pereira 
judgment, cited in footnote 29, that it followed from the 
interpretation of Article 73 of Regulation N o 1408/71, in 
conjunction with Article l(a)(ii) and with point I, C, (b) of 
Annex 1 of the same regulation, that Mr Stöber and 
Mr Pereira did not come within the scope of the regulation, 
the Court first stated that, in view of the same regulation, 
which is a coordination measure, the German legislation was 
free to determine the conditions for entitlement to social 
security benefits, so long as it did not give rise to discrimina­
tion which would be incompatible with Article 52 of the 
Treaty. Subsequently, the Court applied that article directly 
in finding that the German legislation in question was dis­
criminatory and therefore incompatible with the Treaty. 
Likewise, in the Merino Garcia judgment, cited in footnote 
17, after finding that no factor had been disclosed such as to 
affect the validity of point I, C, of the regulation, the Court 
applied Article 48(2) of the Treaty directly to national rules 
which were contrary to it, in holding that an employed 
person whose children were resident in another Member 
State had no right to family benefits for the full calendar 
months falling within an extended period of unpaid leave, 
whereas employed persons whose children were resident in 
the Member State concerned were entitled to such benefits. 
In addition, in the Kemmler judgment, cited in footnote 30, 
the Court applied Article 52 of the Treaty directly to national 
provisions impeding the pursuit of different occupational 
activities in the Member States of the Community. 
34 — See the judgment in Case 143/87 Stanton [1988] ECR 3877, 
paragraph 13. See also the judgment in Case C-10/90 Mastio 
[1991] ECR I-1119, paragraphs 16 to 18, and the Vougioukas 
judgment, cited in footnote 4, paragraph 39. 
In the same connection, the Court has observed that while 
it is true that 'Article 51 of the Treaty leaves in being dif­
ferences between the Member States' social security systems 
and hence in the rights of persons working in the Member 
States, it is not, however, in dispute that the aim of Articles 
48 to 51 of the Treaty would not be met if, through exer­
cising their right to freedom of movement, migrant workers 
were to lose social security advantages guaranteed to them 
by the laws of a Member State. Such a consequence might 
discourage Community workers from exercising their right 
to freedom of movement and would therefore constitute an 
obstacle to that freedom'. See the judgment in Case C-165/91 
Van Munster [1994] ECR 1-4661, paragraph 27, which cites 
the judgment in Case C-349/87 Paraschi [1991] ECR I-4501, 
paragraph 22. See also the judgment in Case C-12/93 Drake 
[1994] ECR I-4337, paragraphs 20 and 22. 
35 — See the judgments in Case 368/87 Hartmann-Troiani [1989] 
ECR 1333, paragraphs 19 and 21, and Case C-340/94 De 
Jaeck [1997] ECR 1-461, paragraphs 36 and 37. 
36 — See the Vougioukas judgment, cited in footnote 4, paragraph 
38. See also Commentaire Mégret, cited in footnote 28, 
p. 123. 
I -1936 
NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
migrant worker once he has exercised his 
freedom of movement with the situation he 
would be in if he had not done so. 3 7 
39. So far as the present case is concerned, 
the appellant in the main proceedings and the 
Commission consider that literal interpreta­
tion of the annex puts at a disadvantage those 
who use their freedom of movement within 
the Community. In particular, the Commis­
sion mentions that, if Mr Nijhuis had not 
done so and had continued to work only in 
the Netherlands and had become incapaci­
tated for work there, he would, being insured 
under the Netherlands legislation, have been 
entitled to incapacity benefits calculated irre­
spective of insurance periods. However, as he 
used his freedom of movement he cannot 
obtain benefits in the Netherlands and he 
obtains benefits in Germany only pro rata 
temporis. According to Mr Nijhuis and the 
Commission, the fact that he has no pro rata 
Netherlands benefits is, for Mr Nijhuis, mani­
festly contrary to the aims of Articles 48 and 
51 of the Treaty. 
40. Even assuming that using his freedom of 
movement within the Community has placed 
Mr Nijhuis in a less favourable situation, the 
pertinent question is to what must the respon­
sibility for this be attributed. If it must be 
attributed to the rules laid down — or not 
laid down — by Regulation N o 1408/71, 
which excludes from its scope special schemes 
for civil servants, the question then arises as 
to whether the regulation is valid by refer­
ence to Articles 48 and 51. However, in the 
first place, this question is not related to the 
direct application of those articles in national 
law and, secondly, it has been decided to the 
effect, essentially, that the regulation is valid. 3 8 
In the present case, direct application of the 
Treaty might be in issue only if the migrant 
worker were in a less favourable situation 
because of national rules. 3 9 
41. Similarly, the only points in the Nether­
lands legislation which might be thought to 
have a causal link with the fact that 
Mr Nijhuis was placed in a less favourable 
situation are the special insurance scheme for 
civil servants which applied during the rel­
evant periods, the exclusion from the ambit 
of the WAO of insurance periods completed 
under that scheme, the choice of a risk insur­
ance scheme (type A) which precludes the 
right to benefits if the person concerned works 
in Germany and, finally — it must be admitted 
— the fact that, as the Commission observes, 
37 — See the Vougioukas judgment, cited in footnote 4, para­
graphs 40 ana 41. 
38 — See paragraph 20 et seq. of this Opinion. 
39 — Shared responsibility, as the Commission contends in its 
observations, would not alter the approach I have taken in 
so far as, in the present case, direct application of the Treaty 
would concern only the portion of responsibility attaching 
to the national provisions. However, acceptance that respon­
sibility is shared by the regulation and the national provi­
sions shows an incipient trend towards attributing respon­
sibility for the coordination of insurance schemes to the 
national legislatures. See paragraph 43 of this opinion. 
I - 1937 
OPINION OF MR COSMAS — CASE C-360/97 
the Netherlands legislation does not permit 
pro rata benefits paid to the person concerned 
in another Member State to be taken into 
account. 
42. To begin with, it must be observed that 
each of these four points is applied to all civil 
servants without distinction. However, it is 
clear that the question of the recognition and 
aggregation of periods completed in the Neth­
erlands and other Member States arises only 
for workers who have used their freedom of 
movement within the Community and that 
they are the only ones who may suffer the 
unfavourable consequences thereof. 
43. Secondly, it must be noted that to regard 
these points of the Netherlands legislation as 
causing discrimination against civil servants 
moving within the Community would amount 
to imposing on the Netherlands an obligation 
to abolish special schemes for civil servants 
and persons treated as such or to announce 
that insurance periods completed thereunder 
are taken into account by general insurance 
schemes of the Netherlands or, again, to 
abolish type A insurance schemes, or even to 
provide that the payment of pro rata benefits 
in another Member State is to be taken into 
account. 
The recognition of such an obligation would 
lead, however, notwithstanding the spirit of 
the Treaty provisions, to calling into question 
the validity of the national rules which arise 
by nature from the perfectly legitimate 
freedom of the national legislature to regulate 
the social security sector,40 not so much 
because those rules lead by themselves to an 
unfavourable situation for those who have 
exercised their freedom of movement within 
the Community, but primarily because they 
have not been coordinated, let alone harm­
onised, with the rules of the other Member 
States.41 That would in substance be 
equivalent to a paradoxical form of abolition 
of the relevant provisions of the regulation by 
placing with the national legislatures the 
responsibility for the coordination — not 
40 — See sections 24 and 25 of this Opinion. In the same connec­
tion the Court has held that point 4 of Section I (now J) of 
Annex VI to Regulation N o 1408/71, as amended, is not 
contrary to Articles 48 and 51 of the Treaty in so far as it 
introduces a new factor, that is to say, the status of the 
employed person when the incapacity arises, in order to 
determine, pursuant to that provision, under which Neth­
erlands legislation, the WAO or the AAW, the right to ben­
efits may be acquired: see the Drake judgment, cited in foot­
note 34, paragraphs 18 and 20 to 25. With regard to the 
legitimate right of the national legislature to regulate social 
security, see also the Stöber and Piosa Pereira judgment, 
cited in footnote 29, paragraph 36. 
41 — The four points of the Netherlands legislation mentioned 
above, particularly that mentioned by the Commission, the 
fact that the Netherlands legislation does not permit pro rata 
benefits paid to Mr Nijhuis in Germany to be taken into 
account, cannot be likened to the national provisions con­
cerned in the abovementioned cases of Vougioukas (footnote 
4), Grahame and Hollanders (footnote 3), Stöber and Piosa 
Pereira (footnote 29), Merino Garcia (footnote 17), Kemmler 
(footnote 30) and Masgio (footnote 34). Those cases relate 
to conditions for the grant or calculation of insurance ben­
efits in relation to the choice of the national insurance scheme 
and in conjunction with exercise of the freedom of move­
ment. In contrast, the points of the Netherlands legislation 
to which the possible application, in the present case, of the 
articles of the Treaty would relate can lead to discrimination 
only in conjunction with a scheme of another Member State. 
In so far as a Member State adheres to the aims of the 
Treaty, it may choose whichever insurance scheme it prefers, 
and the scheme cannot be considered as the cause of dis­
crimination merely because it has unfavourable consequences 
when it is applied in conjunction with a scheme of another 
Member State. On this point, the Court has held that 'by 
prohibiting every Member State from applying, within the 
field of application of the Treaty, its law differently on the 
ground of nationality, Articles 7 and 48 are not concerned 
with any disparities in treatment which may result, between 
Member States, from divergences existing between the laws 
of the various Member States, so long as the latter affect all 
persons subject to them in accordance with objective criteria 
and without regard to their nationality' (see the judgment in 
Case 1/78 Kenny [1978] ECR 1489, paragraph 18). 
I -1938 
NIJHUIS ν BESTUUR VAN H E T LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
to mention the harmonisation — of insurance 
schemes. 4 2 
44. Therefore, and having regard to the terms 
of the Vougioukas judgment, I think any 
direct application of Article 48 must be ruled 
out in the present case because, as the respon­
dent in the main proceedings and the Neth­
erlands Government observe, the method of 
calculating the benefit — which is essential 
for granting the pro rata Netherlands benefits 
— that is to say, the method of coordination 
of the different schemes under which 
Mr Nijhuis was insured, is not in principle 
fixed in the present case. In other words, it 
does not necessarily follow from the Treaty 
or national law, but requires recourse to Com­
munity coordination provisions. 4 3 
45. Judging by its interpretation of the 
case-law following the Vougioukas judgment, 
the Commission is in effect asking the Court 
to reformulate the principles of the Vou­
gioukas case-law, which would amount in 
practice to setting aside the fundamental points 
of that case-law. 
So far as the present case is concerned, the 
reformulation of the Vougioukas case-law pro­
posed in the Commission's observations and 
also by certain commentators, 4 4 would con­
sist in saying that, so long as the Council 
takes no 'technical' measures to extend the 
regulation to special schemes for civil ser­
vants, the national authorities may apply by 
analogy the general scheme of Regulation N o 
1408/71. Referring to its proposal for 
amending the regulation, 4 5 the Commission 
adds that the solution which would result 
from the adoption of the proposal would be 
in effect, in the case of the ABPW, the appli­
cation by analogy of Articles 45(4) and 46 of 
the regulation. 
The reversal of interpretation to which I refer 
above is completely contrary to the Vou­
gioukas case-law, which expressly precludes 
direct application of the Treaty where it is 
necessary to apply Regulation N o 1408/71, 
even if only by analogy. Furthermore, since, 
in particular cases falling outside the literal 
42 — As Advocate General Roemer observed in his Opinion in 
Case 14/68 Wilhelm and Others [1969] ECR 1, in particular 
p. 29, 'the only purpose of the prohibition against discrimi­
nation is to avoid the existence within one and the same 
Member State of different systems dependent on the nation­
ality of those subject to them. O n the other hand, the pro­
hibition does not have as its function the prevention or the 
unfavourable consequences of the territorial limitation of the 
sovereignty and laws of the State, that is to say, to bring 
about the harmonisation of laws within the Community'. 
43 — Moreover this requirement is not called into question either 
by the Commission which, firstly, suggests, as I have already 
said, the application by analogy — and therefore necessarily 
— of the regulation in order to calculate the benefit and, 
secondly, expressly points out in its written observations 
that it would not be appropriate to refrain from applying the 
relevant provision of Annex VI of the regulation because 
that would render the other provisions of Regulation 
N o 1408/71 applicable, although it is impossible to find a 
provision in it which would compel the competent 
Netherlands institutions to grant benefits on the basis of 
belonging to the special scheme for civil servants. 
44 — See P. Mavridis, 'L'arrêt Vougioukas: une révolution dis­
crete? (Réflexions sur la mobilité et la protection sociale des 
agents publics en Europe)', Cahiers de Droit Européen 1998, 
p. 191 if., in particular p. 206 ff. 
45 — See the Commission's proposal for the amendment of Regu­
lation N o 1408/71, cited m footnote 8. 
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OPINION OF MR COSMAS — CASE C-360/97 
wording of the regulation, it would be pos­
sible to apply the articles of the Treaty directly, 
in conjunction with the application by analogy 
of the regulation in question, no-one could 
say that the validity of the provisions of the 
regulation concerning the exclusion of special 
schemes for civil servants is not called into 
question. In particular, whether those provi­
sions are considered invalid or not, in practice 
the regulation would be disapplied in favour 
of the coordination — or even harmonisation 
— by case-law of national schemes through 
the direct application of the Treaty. Conse­
quently it is perfectly clear from the fore­
going observations that, although it does not 
turn the clock back completely, the revision 
by way of interpretation of the Vougioukas 
case-law proposed by the Commission gives 
it an entirely different meaning in any case. 
(d) The necessary clarification of the 
Vougioukas case-law 
46. As is clear from much of what is said 
above, the outcome of the present case, so far 
as the interpretation of the relevant provi­
sions of Annex VI of Regulation 1408/71 is 
concerned (in the version in force at the 
material time), depends on how the Court 
will see fit to follow on from the Vougioukas 
case-law. 
47. Even though, as I have said, the Court 
seems sometimes, on the one hand, to widen 
the interpretation of the provisions of Regu­
lation No 1408/71 by giving them a Commu­
nity content 46 and, on the other, to accept 
the direct application of Article 48 et seq. of 
the Treaty without expressly considering 
whether the conditions laid down by the 
Vougioukas judgment are fulfilled, 47 I do not 
think the Court, by virtue of a certain ten­
dency towards the harmonisation of national 
laws, which conflicts with the declared inten­
tion of coordination on which the abovemen-
tioned regulation is based, 48 should go so far 
as to go back on the actual terms of that 
judgment. 
48. I shall not repeat the specific arguments 
in support of my position. I shall merely 
mention certain general points with regard to 
the advisability of clarifying the Vougioukas 
case-law in relation to the validity and inter­
pretation of the relevant provisions of the 
regulation. 
49. First, it must be observed that the Court's 
finding, in the Vougioukas judgment, that 
Article 4(4) of the regulation (which excluded 
special schemes for civil servants and persons 
treated as such from the scope of the regula­
tion and which was inseparably connected 
with the provisions of Annex VI which are 
relevant in this case) is valid is in harmony 
46 — See paragraph 26 of this opinion. 
47 — See paragraph 35 of this opinion. 
48 — The Court has constantly stated that Regulation N o 1408/71 
is limited to coordinating national laws and does not have 
the object of harmonising them. See, for example, the judg­
ments in Case 100/78 Rossi [1979] ECR 831, paragraph 13; 
Case 733/79 Laterza [1980] ECR 1915, paragraph 8; Vou­
gioukas, cited in footnote 4, paragraph 13; Stöber and Piosa 
Pereira, cited in footnote 29, paragraph 36, and Merino 
Garcia, cited in footnote 17, paragraph 27. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
with the nature of the Council's obligation 
under Article 51 of the Treaty to adopt coor­
dination measures. Although Article 51 
imposes an obligation, as a matter of prin­
ciple, to adopt coordination measures, a ruling 
that failure to adopt such measures is invalid 
cannot in practice be of assistance because, 
even if one took the view, on the basis of the 
articles of the Treaty, that the validity of the 
relevant provisions of Annex VI to the regu­
lation is affected by the fact that they do not 
allow the insurance periods completed by 
Mr Nijhuis under the ABP W scheme to be 
taken into account, the coordination of spe­
cial schemes for civil servants would not 
thereby be attained. Even though the Court 
may declare acts of the Council to be invalid, 
it cannot take the Council's place, particu­
larly since, as the Vougioukas judgment 
observes, the Council has a broad discretion 
with regard to the choice of the most appro­
priate measures. 4 9 As Advocate General 
Jacobs point out in his Opinion in the Hart­
mann Troiani case, although it is undeniable 
that a broad interpretation must be given to 
Article 48, it is doubtful whether it is possible 
to rely on general Treaty provisions — such 
as Article 48 — in order to fill gaps in Com­
munity social security legislation. And he 
added that 'if that were so, the need for leg­
islation, and particularly for amending legisla­
tion, would be minimal'. 5 0 
50. Secondly, the coordination of special 
schemes for civil servants can under no cir­
cumstances be effected by the application by 
analogy of the provisions of Regulation N o 
1408/71 relating to the coordination of gen­
eral schemes. Apart from the question whether 
there is a lacuna in the law, which is doubt­
ful, 5 1 application by analogy also presup­
poses a similitude of situations, which simply 
does not exist in this case. To claim that the 
rules on the coordination of general schemes 
may in principle apply to special schemes is 
hardly convincing. It is primarily because the 
situations to be regulated are not at all similar, 
and also because the differences between the 
special schemes for civil servants in the 
Member States were originally insurmount­
able, that the Court found that the Council's 
49 — See the Opinion of Advocate General Ruiz-Jarabo Colomer 
in the Vougioukas case, cited in footnote 4, paragraph 23. 
The obligation imposed by Article 51 corresponds to the 
obligation for positive action by the national authorities in 
connection with giving concrete expression to social security 
rights at the national level (status positivus). Although this 
obligation exists in principle, there are no measures which 
can usefully be called upon against authorities which have 
neglected to take steps leading to the concrete expression of 
rights. In other words, a declaration that failure to adopt 
such measures is invalid would not lead to the requisite 
implementation because there is no previous scheme which 
could be applied and the courts cannot take the place of the 
competent legislative or administrative authorities in their 
respective tasks. Only where the authorities take such mea­
sures can a power of review be exercised and the annulment 
of new measures may have a positive effect. In that case, the 
new measures may be reviewed on the basis of the purposes 
of the rights, as already formulated by the existing scheme. 
If those measures are annulled, it then becomes possible to 
apply that scheme. The foregoing considerations are con­
firmed by the Court's case-law, which has found, first, that 
by providing for coordination measures, Regulation N o 
1408/71 confers on workers 'rights which they would not 
otherwise enjoy and which thus help to ensure freedom of 
movement for workers in accordance with Article 51 of the 
Treaty' (see the judgment in Case C-62/91 Gray [1992] ECR 
1-2737, paragraph 10, emphasis added) and, secondly, the 
power of review comprises safety mechanisms which have 
the effect that 'the Community rules on social security, 
introduced pursuant to Article 51 of the Treaty, must refrain 
from adding to the disparities which already stem from the 
absence of harmonisa tion of national legislation' (sec the 
Pinna judgment, cited in footnote 18, paragraph 21). 
50 — See the Opinion of Advocate General Jacobs in the Hart­
mann Troiani case, cited in footnote 35. 
51 — See paragraph 29 of this opinion. 
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OPINION OF MR COSMAS — CASE C-360/97 
delay in taking coordination measures might 
be justified up to a certain point. 52 
51. Finally, there is no question of applying 
by analogy, as the Commission in essence 
proposes, subsequent Community legislation, 
which was intended to extend coordination 
to special schemes for civil servants, and in 
fact did so. 
Firstly, the fact that the Court cannot act in 
place of the Council, particularly where the 
latter has a discretion, is not affected by the 
actual position which the Council finally 
adopted — as expected — in exercising its 
discretionary powers for coordinating special 
schemes for civil servants. 53 
Secondly, the retrospective application of the 
new Regulation N o 1606/98 which, although 
expressly precluded by Article 1, point 11, 
thereof, was sought by Mr Nijhuis at the 
hearing, would be inconsistent with legal cer­
tainty since the facts of each case must be 
governed by the rules which were in force at 
the time when those facts occurred. 54 
52 — Sec the Vougioukas judgment, cited in footnote 4, paragraph 
32. 
For the same reason, there can likewise be no question of 
annulling an exception which would entail a return to the 
rule (with regard to the consequences of the Pinna judg­
ment, cited in footnote 18, see the judgment in Case 359/87 
Pinna II [1989] ECR 585, paragraphs 12 to 17, and the 
Opinion of Advocate General Lenz in that case, in particular 
paragraph 25), because there simply is no general rule coor­
dinating special schemes for civil servants from which cer­
tain classes of person, for example, are excepted. N o such 
rule exists at all. Finally, in any case it cannot be said that 
the non-coordination of special schemes for civil servants is 
an exception to the rule coordinating general schemes; nor, 
of course, can it be an exception to the rules for special 
social security schemes of other classes of workers (see 
Articles 38(2) and 45(2) of Regulation N o 1408/71, in the 
version in force at the material time). Likewise, no-one can 
say that the latter schemes and the special schemes for civil 
servants have the necessary degree or similarity to justify the 
application by analogy of the same scheme. 
53 — Therefore I do not think it necessary to examine the substance 
of the LISV's argument at the hearing that it follows from 
the eighth recital and from Articles 43a and 53a, which were 
added to the basic regulation by Regulation N o 1606/98, 
that the measures finally adopted by the Council for the 
coordination of special schemes for civil servants must not 
be treated as the application by analogy of Regulation N o 
1408/71 (Article 45(4)) in the version in force at the mate­
rial time, as referred to by the Commission. 
54 — While noting, firstly, the ever greater tendency in the Member 
States to bring their civil servants under general schemes and 
the gradual disappearance of the differences which histor­
ically distinguished special schemes from general schemes 
and, secondly, that, if the Commission's proposal were 
approved, it would extend the scope of Regulation N o 
1408/71 to special schemes for civil servants, Advocate Gen­
eral Ruiz-Jarabo Colomer never questioned the validity of 
the provisions of the regulation in question or even touched 
on the possibility of applying by analogy the new proposed 
provisions, although he recognised that there was a lacuna 
which ought to be filled, which the Court subsequently con­
firmed (see the Opinion of Advocate General Ruiz-Jarabo 
Colomer in the Vougioukas case, cited in footnote 4). 
See also the Middleburgh judgment, cited in footnote 32, 
where the Court was not in favour of the application by 
analogy of the measures relating to employees or the provi­
sions of Council Regulation (EEC) N o 3427/89 of 30 
October 1989 (OJ 1989 L 331, p. 30), which amended Regu­
lation N o 1408/71 by bringing self-employed persons within 
the scope of the latter, in spite of the fact that the amend­
ment, although subsequent to the periods in question, was 
made before the Court's judgment was given (paragraph 14). 
For confirmation of the Court's position, see the Stöber and 
Piosa Pereira judgment, cited in footnote 29, paragraph 40. 
See, finally, the Kemmler judgment, cited in footnote 30, 
where the Court found that in accordance with its Article 2, 
Council Regulation (EEC) N o 1390/81 of 12 May 1981, 
extending Regulation N o 1408/71 to self-employed persons 
and to members of their families (OJ 1981 L 143, p. 1), no 
rights are acquired thereunder in respect of a period prior 
to the date of its entry into force and that as it entered into 
force after both the periods relevant to the main proceed­
ings, that regulation was not applicable to the dispute 
(paragraph 7). 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
52. Just as it is not possible for the Court 
itself to draw up the coordination rules which 
the Community legislature ought to have 
adopted, so it would not be good for doubts 
to subsist on the interpretation of the VOU-
gioukas judgment. Therefore it would not be 
advisable, from the viewpoint of legal cer­
tainty, to circumvent the conditions laid down 
by that judgment for the direct application of 
the articles of the Treaty or to evade the ques­
tion of the validity of coordination regula­
tions adopted on the basis of Article 51 of the 
Treaty, in order to develop, in substance, by 
a process which often reflects an underlying 
tendency towards the harmonisation of 
national laws, a parallel body of case-law 
which, by means of the direct application of 
articles of the Treaty, would take the place of 
action by the Council. 
53. Therefore I propose that the Court's reply 
to the first question referred by the Centrale 
Raad van Beroep be in the negative. 
54. If, however, the Court were to take the 
view that the relevant provisions of Annex VI 
of Regulation N o 1408/71 must be construed 
differently and if, therefore, Mr Nijhuis must 
be paid a pro rata Netherlands benefit on the 
basis of the direct application of Articles 48 
to 51 of the Treaty, I think it would be advis­
able, on grounds of legal certainty relating to 
the reversal of the Vougioukas case-law, to 
grant the application made at the hearing by 
the respondent in the main proceedings and 
by the Netherlands Government, by limiting 
the retrospective effects 5 5 of the judgment to 
persons who have already commenced legal 
proceedings or raised equivalent claims seeking 
the recognition of such a right to the aggrega­
tion of periods. 5 6 
Β — The second question 
55. As the reply to the first question is in the 
negative, it is unnecessary to reply to the 
55 — It must be noted that to limit the effects of such a judgment 
to the future (ex tunc) would be pointless as Regulation N o 
1408/71 now applies in the version amended by Regulation 
N o 1606/98, cited above. Therefore to limit the effects in 
time of such a judgment makes sense only as limiting the 
extent of its retrospective effect. 
56 — In view of the Court's current case-law arising from the 
Vougioukas judgment, the Member States and competent 
national authorities might legitimately believe that insurance 
periods completed under a special scheme for civil servants 
should not be taken into account for calculating pro rata 
invalidity benefits. Therefore a judgment of the Court 
departing significantly from the Vougioukas judgment could 
have serious financial consequences, particularly by reason 
of the large number of legal relationships formed in good 
faith on the basis of legislation which has been judged valid 
in the light of Community law, and also by reason of the 
fact that the Member States and national authorities have 
adopted an approach which is inconsistent with Community 
law because of serious, objective uncertainty as to the exact 
meaning of the Community rules, as interpreted by the 
Court. However, the Court's own case-law will have largely 
contributed to creating or increasing that uncertainty. With 
regard to the protection of legitimate expectation created by 
the Court's case-law, see the judgment in Case C-308/93 
Cabanis-Issarte [1996] ECR I-2097, paragraphs 47 and 48, 
and point 2 of the operative part. 
I-1943 
OPINION OF MR COSMAS — CASE C-360/97 
second. However, for the sake of complete­
ness, I shall examine the second question, 
without prejudice to the foregoing arguments. 
56. If the Court considers that Mr Nijhuis 
should be paid pro rata Netherlands benefits, 
the institution responsible for making pay­
ment will be determined according to the legal 
basis adopted for the payment obligation, as 
the respondent in the main proceedings has 
observed. 
57. If, on the basis of a broad interpretation 
of the annex to the regulation, the Court finds 
that the periods in question completed under 
the ABPW must be taken into account under 
the WAO scheme, it would necessarily follow 
that the responsibility rests with the institu­
tion referred to in point 2(b) of Section J of 
Annex 2 to Regulation N o 574/72, which in 
the present case is the NAB (or, since 1 March 
1997, the LISV). 
58. However, should the Court apply Article 
48 of the Treaty directly in order to take into 
account periods completed under the ABPW, 
in other words, if it applies the Treaty and 
not the regulation, the institution responsible 
under national law for administering inval­
idity insurance for civil servants would be the 
competent institution for determining the 
entitlement to benefits which arose during 
those periods. 5 7 
59. In any case, the Court's reply will have 
to emphasise, as the Commission observes 
with reference to the case-law, that practical 
difficulties, owing to the absence of special 
rules for the payment of certain types of con­
tributions, must not prejudice the rights which 
individuals derive from the principles of the 
social legislation of the Community. 5 8 Like­
wise it must be observed that, as laid down 
by Articles 84 and 86 of Regulation N o 
1408/71 (in the version in force at the mate­
rial time), national authorities and institutions 
responsible for social security must in any 
case cooperate and forward claims for ben­
efits to the proper institution if they consider 
that they themselves are not competent to 
handle such claims, and this must not adversely 
affect the persons concerned with regard to 
time-limits and admissibility. 
57 — If this interpretation is adopted, it does not seem possible to 
justify the responsibility of the NAB because the latter is 
responsible for applying the WAO. Even if it is found that 
Regulation N o 1408/71 applies by analogy, it would relate 
to the coordination of the schemes under which Mr Nijhuis 
completed insurance periods, and not to the institution 
responsible for determining the right to benefits. The latter 
would simply be determined by reference to the insurance 
scheme applicable. 
58 — See the judgment in Case C-236/88 Commission ν France 
[1990] 1-3163, paragraph 17. 
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NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN 
VI — Conclusion 
60. Therefore I propose that the Court reply as follows to the questions referred by 
the Centrale Raad van Beroep: 
— Point 4(a) of Section J of Annex VI to Regulation N o 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 Com­
munity (in the version amended and updated by Council Regulation (EEC) N o 
2001/83 of 2 June 1983) must be interpreted as meaning that the period from 
15 October 1968 to 1 April 1974, during which a person was employed exclu­
sively in the Netherlands while insured against invalidity under a special scheme 
for civil servants, must not be taken into account when determining invalidity 
benefits under the combined provisions of Articles 46(2) and 45(4) of that regu­
lation, having regard also to Articles 48 and 51 of the Treaty. 
— As the reply to the first question is in the negative, it is unnecessary to reply 
to the second question. 
I -1945