61982CJ0285_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 285/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), AMSTERDAM, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
W . J . DERKS
AND
NIEUWE ALGEMENE BEDRIJFSVERENIGING ( NEW GENERAL PROFESSIONAL AND TRADE ASSOCIATION ),
Subject of the case
ON THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ),
Grounds
1 BY ORDER OF 19 OCTOBER 1982, WHICH WAS RECEIVED AT THE COURT ON 27 OCTOBER, THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), AMSTERDAM, REFERRED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS RELATING TO THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THOSE QUESTIONS AROSE IN THE COURSE OF PROCEEDINGS BETWEEN W . DERKS AND THE NIEUWE ALGEMENE BEDRIJFSVERENIGING, A NETHERLANDS SOCIAL SECURITY INSTITUTION ( HEREINAFTER REFERRED TO AS ' ' THE ASSOCIATION ' ' ).
3 MR DERKS WAS AN EMPLOYED PERSON IN THE NETHERLANDS FROM 7 JUNE 1955 TO 1 APRIL 1971 . FROM 7 JUNE 1955 HE MADE 500 WEEKLY CONTRIBUTIONS UNDER THE INVALIDITEITSWET ( INVALIDITY LAW ) AND FROM 1 JULY 1967 TO 31 MARCH 1971, THAT IS TO SAY THE DATE ON WHICH HE CEASED TO BE AN EMPLOYED PERSON IN THE NETHERLANDS, HE WAS INSURED UNDER THE WET OP DE ARBEIDSONGESCHIKTHEIDSVERZEKERING ( LAW ON INSURANCE AGAINST INCAPACITY FOR WORK, HEREINAFTER REFERRED TO AS ' ' THE INCAPACITY ( INSURANCE ) LAW ' ' ), WHICH REPLACED THE INVALIDITY LAW . THE INVALIDITY LAW WAS SO-CALLED ' ' TYPE B LEGISLATION ' '
UNDER WHICH THE AMOUNT OF THE BENEFITS WAS NOT INDEPENDENT OF THE LENGTH OF THE PERIODS OF INSURANCE . THE INCAPACITY ( INSURANCE ) LAW IS SO-CALLED ' ' TYPE A LEGISLATION ' ', UNDER WHICH THE AMOUNT OF THE BENEFITS IS INDEPENDENT OF THE LENGTH OF THE PERIODS OF INSURANCE .
4 MR DERKS ALSO MADE VOLUNTARY CONTRIBUTIONS IN GERMANY DURING THE YEARS 1957 TO 1966 AND IN 1968 . FROM 1 APRIL 1971 HE WAS SUBJECT ONLY TO THE GERMAN SCHEME OF COMPULSORY INVALIDITY INSURANCE .
5 WITH EFFECT FROM 7 OCTOBER 1977 MR DERKS WAS GRANTED A NETHERLANDS PENSION IN RESPECT OF HIS INCAPACITY FOR WORK WHICH AROSE ON 8 OCTOBER 1976 . PURSUANT TO ARTICLE 46 ( 2 ) OF REGULATION NO 1408/71 THE ASSOCIATION TOOK INTO ACCOUNT ON THE ONE HAND THE PERIOD OF INSURANCE IN THE NETHERLANDS FORM 1 JANUARY TO 31 DECEMBER 1968 INCLUSIVE, BUT NOT THE CORRESPONDING PERIOD IN GERMANY AND ON THE OTHER HAND THE PERIOD OF INSURANCE IN GERMANY FROM 1 JANUARY 1957 TO 31 DECEMBER 1966 INCLUSIVE, BUT NOT THE CORRESPONDING PERIOD IN THE NETHERLANDS .
6 THE ASSOCIATION RELIED ON ARTICLE 15 ( 1 ) ( C ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) WHICH WAS ADOPTED IN ORDER TO IMPLEMENT REGULATION NO 1408/71 . ACCORDING TO THE ASSOCIATION, DURING THE PERIOD FROM 1 JANUARY 1957 TO 31 DECEMBER 1966 INCLUSIVE, MR DERKS WAS INSURED VOLUNTARILY IN THE FEDERAL REPUBLIC OF GERMANY WHEREAS IN THE NETHERLANDS, DURING THE SAME PERIOD, HE COMPLETED PERIODS TREATED AS PERIODS OF INSURANCE . DURING THE PERIOD FROM 1 JANUARY 1968 TO 31 DECEMBER 1968 INCLUSIVE MR DERKS WAS INSURED VOLUNTARILY IN THE FEDERAL REPUBLIC OF GERMANY BUT COMPULSORILY IN THE NETHERLANDS .
7 MR DERKS BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE RAAD VAN BEROEP, AMSTERDAM . THAT COURT, CONSIDERING THAT THE JUDGMENT TO BE GIVEN DEPENDED ON THE INTERPRETATION OF COMMUNITY LAW, REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :
' ' 1 . FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 46 ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL MUST A CONTRIBUTION PERIOD UNDER THE INVALIDITEITSWET ( INVALIDITY LAW ) BE DEEMED TO HAVE BEEN COMPLETED UNDER ' ' LEGISLATION ' '
WITHIN THE MEANING OF ARTICLE 1 ( J ) IN CONJUNCTION WITH ARTICLE 1 ( R ) AND WITH ARTICLE 94 ( 2 ) OF THAT REGULATION?
2.IF A CONTRIBUTION PERIOD IS COMPLETED UNDER ' ' LEGISLATION ' '
WITHIN THE MEANING OF THE SAID ARTICLE 1 ( J ) IN CONJUNCTION WITH ARTICLE 1 ( R ) IS IT TO BE REGARDED AS AN INSURANCE PERIOD OTHER THAN A PERIOD TREATED AS SUCH, WITHIN THE MEANING OF ARTICLE 15 ( 1 ) ( C ) OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OR IS IT TO BE REGARDED AS A PERIOD TREATED AS AN INSURANCE PERIOD, COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE, WITHIN THE MEANING OF THE LAST-MENTIONED PROVISION?
3.IN THE CASE OF A PERIOD COMPLETED BEFORE 1 JULY 1967, FOR WHICH NO CONTRIBUTIONS WERE PAID UNDER THE INVALIDITEITSWET ALTHOUGH THE PERSON CONCERNED WAS GAINFULLY EMPLOYED WITHIN THE MEANING OF PARAGRAPH 4 ( A ) OF PART H OF ANNEX V TO REGULATION NO 1408/71 ( AS THAT PROVISION WAS WORDED AT THE TIME OF THE CONTESTED DECISION ) MUST THE PERIOD IN QUESTION BE REGARDED AS AN INSURANCE PERIOD OTHER THAN A PERIOD TREATED AS SUCH, WITHIN THE MEANING OF ARTICLE 15 ( 1 ) ( C ) OF REGULATION NO 574/72, OR AS A PERIOD TREATED AS AN INSURANCE PERIOD, COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE, WITHIN THE MEANING OF THE LAST-MENTIONED PROVISION?
4.IF A PERIOD TREATED AS A PERIOD OF COMPULSORY INSURANCE, COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE, COINCIDES WITH A PERIOD OF VOLUNTARY INSURANCE OTHER THAN A PERIOD TREATED AS SUCH, DOES THE QUESTION WHETHER A PERIOD IS COMPULSORY OR VOLUNTARY ( ARTICLE 15 ( 1 ) ( B ) OR THE QUESTION WHETHER A PERIOD IS ' ' TREATED AS SUCH, COMPLETED UNDER THE LEGISLATION OF ONE MEMBER STATE ' '
( ARTICLE 15 ( 1 ) ( C )) TAKE PRECEDENCE UNDER ARTICLE 15 OF REGULATION NO 574/72?
' '
8 UNTIL 1 JANUARY 1965 THE INVALIDITY LAW PROVIDED A SCHEME FOR THE COMPULSORY INSURANCE OF WORKERS AGAINST THE FINANCIAL CONSEQUENCES OF INVALIDITY AND OLD AGE, AND THE INSURANCE ALSO OPERATED AS AN OLD-AGE INSURANCE SCHEME FOR ITS MEMBERS, WHICH FROM 1957 WAS A SUPPLEMENTARY OLD-AGE INSURANCE SCHEME . WITH EFFECT FROM 1 JULY 1967 THE INVALIDITY LAW WAS REPLACED BY THE INCAPACITY ( INSURANCE ) LAW .
9 IN ORDER TO DEAL WITH THE CASES SUBJECT TO THE INVALIDITY LAW THE NETHERLANDS LEGISLATURE ON 10 DECEMBER 1964 PASSED THE LIQUIDATIEWET INVALIDITEITSWETTEN ( INVALIDITY LAWS ( REPEAL LAW ). ACCORDING TO ARTICLE 3 THEREOF, FROM 1 JANUARY 1965 CONTRIBUTIONS COULD NO LONGER BE PAID UNDER THE INVALIDITY LAW BUT WAGE-EARNERS REMAINED INSURED AGAINST THE RISK OF INVALIDITY UNTIL THE INCAPACITY ( INSURANCE ) LAW CAME INTO FORCE ON 1 JANUARY 1967 . IT APPEARS FROM THE FILE THAT CONTRIBUTIONS PAID BEFORE 1 JANUARY 1965 WERE SUBSEQUENTLY REDEEMED .
10 AFTER THE INCAPACITY ( INSURANCE ) LAW HAD REPLACED THE INVALIDITY LAW THE QUESTION AROSE AS TO HOW PERIODS OF INSURANCE COMPLETED UNDER THE INVALIDITY LAW WERE TO BE TRANSFERRED AND TAKEN INTO ACCOUNT AFTER 1 JULY 1967 IN RELATIONS WITH OTHER MEMBER STATES AND FOR THE PURPOSE OF CALCULATING PENSIONS PRO RATA . THE PROBLEM RESULTED FROM THE FACT THAT AFFILIATION OF INSURED PERSONS TO THE SCHEME UNDER THE INVALIDITY LAW INVOLVED LACUNAE WHICH MADE IT IMPOSSIBLE TO ESTABLISH WITH PRECISION ON THE BASIS OF THE MEMBERSHIP REGISTER THE PERIODS OF INSURANCE COMPLETED .
11 IN ORDER TO RESOLVE THAT QUESTION CIRCULAR NO 315 OF THE SOCIALE VERZEKERINGSRAAD ( SOCIAL SECURITY COUNCIL ) OF 8 MARCH 1967 GAVE INSTRUCTIONS, IN CONNECTION WITH THE APPLICATION OF REGULATIONS NOS 3 AND 4 FOR THE TAKING INTO ACCOUNT AND TRANSFERENCE TO FOREIGN INSTITUTIONS OF PERIODS OF INSURANCE COMPLETED BEFORE 1 JULY 1967 . THOSE INSTRUCTIONS WERE REPEATED, IN RELATION TO THE APPLICATION OF THE COMMUNITY REGULATIONS IN FORCE AT THE TIME, IN PARAGRAPH 4 OF PART H OF ANNEX V TO REGULATION NO 1408/71, WHICH STATES AS FOLLOWS :
' ' APPLICATION OF NETHERLANDS LEGISLATION ON INSURANCE AGAINST INCAPACITY FOR WORK
( A ) FOR THE PURPOSES OF THE PROVISIONS OF ARTICLE 46 ( 2 ) OF THE REGULATION, PERIODS OF PAID EMPLOYMENT AND PERIODS TREATED AS SUCH COMPLETED UNDER NETHERLANDS LEGISLATION BEFORE 1 JULY 1967 SHALL ALSO BE CONSIDERED AS PERIODS OF INSURANCE COMPLETED UNDER NETHERLANDS LEGISLATION ON INSURANCE AGAINST INCAPACITY FOR WORK .
( B)THE PERIODS TO BE TAKEN INTO ACCOUNT IN PURSUANCE OF THE PROVISIONS OF SUBPARAGRAPH ( A ) SHALL BE CONSIDERED AS PERIODS OF INSURANCE COMPLETED UNDER A LEGISLATION OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) OF THE REGULATION . ' '
THE FIRST THREE QUESTIONS
12 THE QUESTIONS REFERRED TO THE COURT INQUIRE WHETHER, FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 46 OF REGULATION NO 1408/71 AND OF ARTICLE 15 OF REGULATION NO 574/72 :
( A ) A PERIOD OF EMPLOYMENT COMPLETED BEFORE 1 JANUARY 1965 UNDER THE NETHERLANDS LEGISLATION IN FORCE AT THAT TIME, IN RESPECT OF WHICH CONTRIBUTIONS WERE PAID IN ACCORDANCE WITH THAT LEGISLATION ;
( B)A PERIOD OF PAID EMPLOYMENT COMPLETED IN THE NETHERLANDS BEFORE 1 JULY 1967 IN RESPECT OF WHICH NO CONTRIBUTIONS WERE PAID ;
MUST BE REGARDED AS PERIODS OF INSURANCE OR AS PERIODS TREATED AS PERIODS OF INSURANCE .
13 ARTICLE 1 ( R ) OF REGULATION NO 1408/71 STATES THAT THE EXPRESSION ' ' PERIODS OF INSURANCE ' '
MEANS PERIODS OF CONTRIBUTION OR PERIODS OF EMPLOYMENT AS DEFINED OR RECOGNIZED AS PERIODS OF INSURANCE BY THE LEGISLATION UNDER WHICH THEY WERE COMPLETED OR CONSIDERED AS COMPLETED, AND ALL PERIODS TREATED AS SUCH, WHERE THEY ARE REGARDED BY THE SAID LEGISLATION AS EQUIVALENT TO PERIODS OF INSURANCE .
14 ARTICLE 1 ( J ) STATES THAT ' ' LEGISLATION ' '
MEANS IN RESPECT OF EACH MEMBER STATE STATUTES, REGULATIONS AND OTHER PROVISIONS AND ALL OTHER IMPLEMENTING MEASURES, PRESENT OR FUTURE, RELATING TO THE BRANCHES AND SCHEMES OF SOCIAL SECURITY COVERED BY ARTICLE 4 ( 1 ) AND ( 2 ). ARTICLE 94 ( 2 ) PROVIDES THAT ALL PERIODS OF INSURANCE AND, WHERE APPROPRIATE, ALL PERIODS OF EMPLOYMENT OR RESIDENCE COMPLETED UNDER THE LEGISLATION OF A MEMBER STATE BEFORE 1 OCTOBER 1972 OR BEFORE THE DATE OF THE APPLICATION OF THE REGULATION IN THE TERRITORY OF THAT MEMBER STATE, IS TO BE TAKEN INTO CONSIDERATION FOR THE DETERMINATION OF RIGHTS TO BENEFITS UNDER THAT REGULATION .
15 THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 9 JUNE 1977 ( CASE 109/76 BLOTTNER V NIEUWE ALGEMENE BEDRIJFSVERENIGING ( 1977 ) ECR 1141 ) THAT THE WORDS ' ' PRESENT OR FUTURE ' '
WITHIN THE MEANING OF ARTICLE 1 ( J ) MUST NOT BE INTERPRETED AS EXCLUDING MEASURES WHICH WERE NO LONGER IN FORCE AT THE TIME OF THE ADOPTION OF REGULATION NO 1408/71 AND OF THE REGULATION IMPLEMENTING IT . THE OBJECTIVE OF ARTICLE 51 OF THE TREATY WOULD NOT BE ATTAINED IF THE WORKER LOST THE STATUS OF AN INSURED PERSON WITHIN THE MEANING OF THE COMMUNITY REGULATIONS SOLELY BECAUSE OF THE FACT THAT, WHEN THOSE REGULATIONS WERE ADOPTED, THE NATIONAL LEGISLATION IN FORCE AT THE TIME AT WHICH THE WORKER WAS INSURED HAD BEEN REPLACED BY DIFFERENT LEGISLATION . IT FOLLOWS FROM THOSE CONSIDERATIONS THAT THE FACT THAT THE LEGISLATION IN FORCE AT THE TIME DURING WHICH THE CONTRIBUTIONS WERE PAID AND THE EMPLOYMENT WAS PERFORMED IS NO LONGER IN FORCE IS IRRELEVANT IN RELATION TO THE REPLIES TO BE GIVEN TO THE QUESTIONS REFERRED TO THE COURT .
16 IT FOLLOWS FROM THE WORDING OF PARAGRAPH 4 OF PART H OF ANNEX V TO THE REGULATION, CITED ABOVE, THAT THE PERIODS REFERRED TO IN THE QUESTIONS ARE TO BE REGARDED AS PERIODS OF INSURANCE COMPLETED UNDER NETHERLANDS LEGISLATION AND THAT THEY ARE TO BE REGARDED AS PERIODS COMPLETED UNDER LEGISLATION OF THE TYPE REFERRED TO IN ARTICLE 37 ( 1 ) ( KNOWN AS ' ' TYPE A ' ' ). THE FACT THAT THE CONTRIBUTIONS PAID WERE SUBSEQUENTLY REDEEMED AND THAT, IN RESPECT OF THE
PERIOD FROM 1 JANUARY 1965 TO 1 JULY 1967, NO CONTRIBUTION WAS PAID IS IRRELEVANT IN THAT CONNECTION . THE FACT THAT THE INSURANCE SCHEME IN FORCE BEFORE 1 JULY 1967 WAS IN FACT OF TYPE B IS EQUALLY IRRELEVANT .
17 IT FOLLOWS THAT THE PERIODS REFERRED TO BY THE QUESTIONS ARE TO BE REGARDED AS PERIODS OF INSURANCE ACTUALLY COMPLETED UNDER THE NETHERLANDS LEGISLATION AND NOT AS PERIODS NOT COVERED BY INSURANCE, WHICH ARE THEREFORE, IN CERTAIN CIRCUMSTANCES, TREATED AS PERIODS OF INSURANCE .
18 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE REPLY TO THE FIRST THREE QUESTIONS REFERRED TO THE COURT BY THE RAAD VAN BEROEP, AMSTERDAM, MUST BE THAT FOR THE APPLICATION OF ARTICLE 46 OF REGULATION NO 1408/71 AND OF ARTICLE 15 OF REGULATION NO 574/72 :
( A ) A PERIOD OF EMPLOYMENT COMPLETED BEFORE 1 JANUARY 1965 UNDER THE NETHERLANDS LEGISLATION IN FORCE AT THAT TIME, IN RESPECT OF WHICH CONTRIBUTIONS WERE PAID IN ACCORDANCE WITH THAT LEGISLATION ;
( B)A PERIOD OF PAID EMPLOYMENT COMPLETED IN THE NETHERLANDS BEFORE 1 JULY 1967 IN RESPECT OF WHICH NO CONTRIBUTIONS WERE PAID ;
ARE TO BE REGARDED AS PERIODS OF INSURANCE AND NOT AS PERIODS TREATED AS SUCH .
19 IN VIEW OF THE REPLY GIVEN TO THE FIRST THREE QUESTIONS THE FOURTH QUESTION HAS LOST ITS PURPOSE .
Decision on costs
COSTS
20 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE RAAD VAN BEROEP, AMSTERDAM, BY ORDER OF 19 OCTOBER 1982, HEREBY RULES :
FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 46 OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLE 15 OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ):
( A ) A PERIOD OF EMPLOYMENT COMPLETED BEFORE 1 JANUARY 1965 UNDER THE NETHERLANDS LEGISLATION IN FORCE AT THAT TIME, IN RESPECT OF WHICH CONTRIBUTIONS WERE PAID IN ACCORDANCE WITH THAT LEGISLATION ;
( B)A PERIOD OF PAID EMPLOYMENT COMPLETED IN THE NETHERLANDS BEFORE 1 JULY 1967 IN RESPECT OF WHICH NO CONTRIBUTIONS WERE PAID ;
ARE TO BE REGARDED AS PERIODS OF INSURANCE AND NOT AS PERIODS TREATED AS SUCH .