3.

It is clear that since the aforementioned benefits are based on the criteria of nationality and residence they are not available to migrant workers. In order to avoid such discrimination the Council included in the Community social security scheme ad hoc provisions which also take account of the particular changes in the pension scheme brought about by marriage under Netherlands law. Point 2 (a) of Part I of Annex VI to Council Regulation (EEC) No 1408/71, as amended (Official Journal 1983, L 230, p. 8), provides that ‘Periods of insurance before 1 January 1957 during which a recipient, not satisfying the conditions [laid down in Articles 43 and 44 of the Old-Age Law], resided in the territory of the Netherlands after the age of 15 or during which, whilst residing in the territory of another Member State, he pursued an activity as an employed person in the Netherlands for an employer established in that country, shall also be considered as periods of insurance, completed in application of Netherlands legislation for general old-age insurance’. Point 2 (c) provides that ‘As regards a married woman whose husband is entitled to a pension under Netherlands legislation on general old-age insurance, periods of the marriage preceding the date when she reached the age of 65 years and during which she resided in the territory of one or more Member States shall also be taken into account as insurance periods, in so far as those periods coincide with periods of insurance completed by her husband under that legislation and with those to be taken into account in pursuance of subparagraph (a)’. Finally, Point 2 (f) provides that the periods referred to in Subparagraphs (a) and (c) are only to be taken into account or calculation of the pension ‘if the person concerned has resided for six years in the territory of one or more Member States after the age of 59 years and for as long as that person is residing in the territory of one of those Member States’. Let us examine those provisions. It should first be noted that, unlike Article 43 of the Old-Age Law, Point 2 (a) provides that the recipient of a Netherlands pension may benefit from the transitional provisions under the national scheme only if he resided in the Netherlands after the age of 15 or if he pursued an activity as an employed person in the Netherlands. The reason for that requirement is simple. Point 2 (f) provides that, in order to have the years prior to 1957 recognized as insurance periods for pension purposes, the person concerned must have resided for at least six years, after the age of 59, ‘in the territory of one or more Member States’ (and not therefore solely in the Netherlands as is required by Article 43). In conjunction with the other conditions of the national scheme, that provision means that any person who is entitled to a Netherlands pension — because, for example, he has worked in the Netherlands at some time — may benefit from that concession even if he has never resided there. That is clearly unacceptable, and Point 2 (a) therefore provides that the years prior to 1957 may only be taken into account provided that the recipient resided in the Netherlands during that period. It follows that the conditions laid down by Community law for benefiting from the concession appear to be almost the opposite of those laid down by national law: under the Old-Age Law, the crucial factor is whether a person resided in the Netherlands during the six years before he reached pensionable age (Article 43); under Annex VI, by contrast, that condition may be satisfied by residence in the territory of another Member State (Point 2 (f)), provided that the person concerned resided or worked in the Netherlands during the initial years in which he was insured, namely between his 15th birthday and 1 January 1957. In my opinion that distinction reveals that, in adjusting the national provisions to the needs of the Community, the Council was more concerned with the case of a foreign worker moving to the Netherlands than with the reverse situation. That approach is confirmed in the remainder of Point 2 (c). Unlike the other two provisions, Point 2 (c) does not relate to the transitional provisions of the Old-Age Law; on the contrary, it seeks to ensure that a worker who moves to the Netherlands and whose wife remains in their country of origin is not placed at a disadvantage as compared with a married man in the same position whose wife accompanies him. It must be remembered that under Article 10 of the Old-Age Law the husband's pension is reduced by 1% for each year in which the wife was uninsured, which is precisely the case where she resides in another State; consequently, in order to avoid such a loss of entitlement, Point 2 (c) provides that periods subsequent to the marriage during which the wife was not resident in the Netherlands are also to be regarded as insurance periods. However, only periods of the marriage are to be taken into account; periods between the wife's 15th birthday and the date of the marriage are disregarded, unless the requirements of Articles 43 and 44 of the Old-Age Law (namely, residence in the Netherlands for at least six years since the 49th birthday of the person in question and Netherlands nationality) are satisfied. In other words, the annex does not confer any retroactive benefit on a woman who did not reside in the Netherlands before her marriage; as will be seen, that choice — obviously due the the fact that no question of discrimination arises before the marriage — leads to consequences which are inconsistent with certain fundamental principles of Community law.