OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 4 February 2016 ( 1 )

Case C‑465/14

Raad van bestuur van de Sociale verzekeringsbank

v

F. Wieland

and

H. Rothwangl(Request for a preliminary ruling

from the Centrale Raad van Beroep (Higher Social Security Court, Netherlands))

‛Social security — Articles 18 and 45 TFEU — Regulation (EEC) No 1408/71 — Articles 2, 3 and 94(1) to (3) — Regulation (EC) No 859/2003 — Article 2(1) to (3) — Old-age pension benefits — National legislation excluding former seafarers from insurance — Determination of claimant’s rights prior to the accession to the European Union of his State of nationality’

1. In this request for a preliminary ruling concerning the interpretation of Regulation No 1408/71 ( 2 ) and Regulation No 859/2003, ( 3 ) the Centrale Raad van Beroep (Higher Social Security Court, Netherlands) asks whether those regulations preclude Netherlands rules which, in the 1960s, excluded third-country nationals from insurance in respect of old-age pension benefits. The main proceedings concern two former seafarers who during that period lived and worked on board vessels whose home port was in the Netherlands. Both claimants were Austrian (and thus third-country) nationals at the time. ( 4 ) However, when they made their respective claims for a pension from the Netherlands authorities in 2008, Austria had acceded to the European Union. Mr Wieland had in the meantime become an American citizen whilst Mr Rothwangl retained his Austrian nationality. The referring court wishes to know whether the two former seafarers come within the scope of the EU social security rules, whether the transitional provisions in those rules cover the claims that they have made for old-age pension benefits and whether the national rules that excluded them from insurance cover for old-age benefits in the 1960s are precluded by the prohibition against discrimination enshrined in Article 18 TFEU and the principle of freedom of movement for workers guaranteed by Article 45 TFEU.

EU legislation

Regulation No 1408/71

2. Prior to the entry into force of Regulation No 1408/71, the Community rules governing the coordination of Member States’ social security systems relating to migrant workers were contained in Regulation No 3/58. ( 5 ) That regulation did not, however, apply to seafarers. ( 6 ) Regulation No 47/67 ( 7 ) then introduced special rules for seafarers from 1 April 1967. It covered, inter alia, determination of the applicable law and old-age pension benefits. Those rules were included in Regulation No 1408/71, thus bringing seafarers within the scope of the latter regulation.

3. The first recital of Regulation No 1408/71 states that provisions for the coordination of national social security legislation fall within the framework of the Treaty provisions concerning freedom of movement for workers who are nationals of Member States.

4. The following definitions in Article 1 are relevant: an ‘employed person’ is, inter alia, any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons; ( 8 )‘legislation’ in respect of each Member State covers regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security within Article 4(1) and (2) of Regulation No 1408/71; ( 9 )‘periods of insurance’ are periods of contribution or periods of employment or self-employment as defined or recognised 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 that legislation as equivalent to periods of insurance; ( 10 ) and ‘periods of residence’ means periods as defined or recognised as such by the legislation under which they were completed or considered as completed. ( 11 )

5. Pursuant to Article 2(1), Regulation No 1408/71 applies to ‘… employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors’.

6. Article 3(1) provides that persons within the scope of Regulation No 1408/71 are subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

7. Invalidity benefits and old-age benefits are amongst the branches of social security that fall within the scope of Regulation No 1408/71 (see respectively Article 4(1)(b) and (c)).

8. Under Article 13(2)(c), a person employed onboard a vessel flying the flag of a Member State is subject to the legislation of that State. ( 12 )

9. The special rules relating to the calculation of old-age pensions are contained in Chapter 3 of Title III. Pursuant to Article 44, where a person has been subject to the legislation of two or more Member States his rights to an old-age pension are calculated by reference to the legislation of each of those States. Article 45 provides that the competent institution in a claimant’s Member State must take account of periods of insurance or residence completed under the legislation of other Member States. In cases where the competent institution is obliged to calculate benefits by reference to aggregated periods of insurance or residence pursuant to the rules laid down in Article 45, the old-age pension benefits to be awarded are calculated in accordance with Article 46(2).

10. Article 94 is entitled ‘Transitional provisions for employed persons’. It states, in particular: ‘1. No right shall be acquired under this Regulation in respect of a period prior to 1 October 1972 or to the date of its application in the territory of the Member State concerned or in a part of the territory of that State. 2. 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 its application in the territory of that Member State or in a part of the territory of that State shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation. 3. Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even though it relates to a contingency which materialized prior to 1 October 1972 or to the date of its application in the territory of the Member State concerned or in a part of the territory of that State. …’

Regulation No 859/2003

11. Article 1 states that the provisions of Regulation No 1408/71 ‘… apply to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, as well as to members of their families and to their survivors, provided they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State’.

12. Article 2 provides: ‘1. This Regulation shall not create any rights in respect of the period before 1 June 2003. 2. Any period of insurance and, where appropriate, any period of employment, self-employment or residence completed under the legislation of a Member State before 1 June 2003 shall be taken into account for the determination of rights acquired in accordance with the provisions of this Regulation. 3. Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even if it relates to a contingency arising prior to 1 June 2003. …’

National legislation

13. The Algemene Ouderdomswet (General Law on old-age insurance; ‘the AOW’) establishes an old-age pension scheme for persons who have attained the age of 65. Under that scheme a person must be between the ages of 15 and 65 and resident in the Netherlands in order to be insured.

14. Under the version of the AOW that applied during the reference period, vessels whose home port was in the Netherlands were treated as being part of that country’s territory. ( 13 ) The crew were deemed to be living on board ship in so far as it could not be established that they were domiciled ashore. In those circumstances the crew were considered to be resident in the Netherlands.

15. However, a third-country national who belonged to the crew of a seagoing vessel whose home port was in the Netherlands was not regarded as an insured person in so far as he lived on board that vessel for the purposes of the AOW. ( 14 )

Factual background, procedure and questions referred

16. Mr Wieland was born in Austria on 20 March 1943. From 11 October 1962 to 7 March 1966 he worked for the Holland-Amerika Lijn (‘HAL’). In May 1966 he moved to the United States of America where on 29 August 1969 he acquired American nationality and consequently lost his Austrian nationality. In April 2008 Mr Wieland applied for an old-age pension. The Board of Management of the Social Insurance Bank (Raad van bestuur van de Sociale verzekeringsbank; ‘the RSvb’) rejected his request by a decision dated 15 April 2008. On 3 October 2008, Mr Wieland notified the RSvb that his main residence was in Austria.

17. Mr Rothwangl was born on 7 December 1943. He is an Austrian national. From 6 November 1962 to 23 April 1963 he worked for HAL. He has received an Austrian invalidity pension (Erwerbsunfähigkeitspension) since 1 March 1998 and a Swiss invalidity pension (Invalidenrente) since 1 September 1998. From 29 November 1998 to 1 December 2008 Mr Rothwangl also received invalidity benefit from the Netherlands authorities under the Law on insurance against incapacity for work (Wet op arbeidsongeschiktheidsverzekering). On 12 January 2009 he applied for an old-age pension with effect from 1 December 2008. The RSvb rejected that request by decision dated 26 May 2009.

18. Both Mr Wieland and Mr Rothwangl successfully challenged the decisions of the RSvb before the Rechtbank (District Court) Amsterdam. The RSvb has appealed against those rulings to the referring court.

19. The Centrale Raad van Beroep (Higher Social Security Court) first states in its order for reference that it has taken account of the judgment of the European Court of Human Rights (‘the Strasbourg Court’) in Wessels-Bergervoet v. The Netherlands. ( 15 ) That case concerned a claim made under Article 14 of the European Convention on Human Rights (‘the ECHR’) which prohibits discrimination, in conjunction with Article 1 of Protocol No 1 thereto (which protects the right to property). The applicant there, who was eligible for old-age pension benefits under the AOW, submitted that the decision of the competent Netherlands institution reducing her pension discriminated against her on grounds of sex in so far as the reason for the reduction was that at the relevant time a married woman was insured only for those periods when her husband was insured, whereas there was no equivalent restriction for married men. The referring court explains that the Strasbourg Court’s reasoning in that case has been applied by the Netherlands courts to other cases involving seafarers’ pension rights. It considers that the position in relation to Mr Wieland and Mr Rothwangl differs from those cases and that the distinction drawn here on grounds of nationality is justified for the purposes of Article 14 ECHR. However, it wonders whether Regulation No 1408/71, read in conjunction with Regulation No 859/2003, and/or Articles 18 TFEU and 45 TFEU, may assist them.

20. Accordingly, the Centrale Raad van Beroep (Higher Social Security Court) requests a preliminary ruling on the following questions: ‘(1) Must Article 3 and Article 94(1) and (2) of Regulation No 1408/71 be interpreted as meaning that a former seafarer who belonged to the crew of a vessel with a home port in a Member State, who had no place of residence on shore and who was not a national of a Member State, cannot be denied (in part) an old-age pension, after the State of which that seafarer is a national acceded to the European Union or after Regulation No 1408/71 entered into force for that State, solely on the ground that that former seafarer was not a national of the (first-mentioned) Member State during the period of the (claimed) insurance cover? (2) Must Articles 18 TFEU and 45 TFEU be interpreted as precluding a rule of a Member State under which a seafarer who belonged to the crew of a vessel with a home port in that Member State, who had no place of residence on shore and who is not a national of any Member State, was excluded from insurance cover for purposes of an old-age pension, whereas, under that rule, a seafarer who is a national of the Member State in which the vessel has its home port and who is otherwise in the same situation is deemed to be insured, if the State of which the first-named seafarer is a national has in the meanwhile, by the time of the determination of the pension, acceded to the European Union or Regulation No 1408/71 has in the meanwhile entered into force for that State? (3) Must Questions 1 and 2 be answered in the same way in the case of a (former) seafarer who, at the time of his employment, was a national of a State which at a later date accedes to the European Union, but who, at the time of that accession or the entry into force of Regulation No 1408/71 for that State, and at the time of submitting his claim to entitlement to an old-age pension, was not a national of any Member State, but to whom Regulation No 1408/71 nevertheless applies pursuant to Article 1 of Regulation No 859/2003?’

21. Written observations were submitted by the RSvb, the Netherlands Government and the European Commission. All three parties made oral submissions at the hearing on 16 September 2015, as did the Kingdom of Spain. Mr Wieland and Mr Rothwangl have not made written or oral submissions in these proceedings.

Assessment

Preliminary observations

22. At the time when Mr Wieland and Mr Rothwangl worked for HAL in the Netherlands seafarers were excluded from the scope of Regulation No 3/58. ( 16 ) That was not inconsistent with the international rules applicable at the time to seafarers’ pensions. ( 17 ) Seafarers’ affiliation to social security schemes was therefore governed exclusively by national rules.

23. In 2008 when Mr Wieland and Mr Rothwangl lodged their respective claims for old-age pensions Regulation No 1408/71 applied. That regulation does not aim to replace different national social security systems. ( 18 ) Rather, its main purpose is to coordinate national systems in order to implement the principle of free movement of persons within the territory of what is now the European Union. ( 19 ) Under those rules, the competent Austrian institution is obliged to coordinate with its Netherlands counterpart in order to establish whether to aggregate the claimants’ pension rights in accordance with Chapter 3 of Title III of that regulation.

24. Whilst it is true that Member States retain the power to organise the conditions of affiliation to their social security schemes, they must none the less, when exercising that power, comply with EU law and, in particular, the Treaty provisions on freedom of movement for workers. Consequently, those conditions may not have the effect of excluding from the scope of national legislation, such as that at issue in the main proceedings, persons to whom that legislation applies by virtue of Regulation No 1408/71; and the compulsory insurance schemes must be compatible with the provisions of Article 18 TFEU and Article 45 TFEU. ( 20 ) The questions referred for a preliminary ruling should be considered against that background.

Question 1

25. The referring court asks in Question 1 whether a retired Austrian seafarer who was a third-country national at the time when he was employed on a vessel whose home port was in the Netherlands can be denied a pension after the State of which he is a national acceded to the European Union. Are the Netherlands rules which excluded Mr Rothwangl from insurance in respect of old-age pension benefits under the Netherlands social security system at the time of his employment on grounds of nationality precluded by Regulation No 1408/71?

26. The RSvb submits that Mr Rothwangl’s case falls outside the scope of Regulation No 1408/71. According to the Netherlands Government, Article 3 of Regulation No 1408/71 does not apply because Mr Rothwangl does not meet the conditions in Article 2. In contrast, the Spanish Government submits that Mr Rothwangl’s position should be considered as at 1 December 2008, when he submitted his claim for a pension. At that point he was within the scope of Regulation No 1408/71 and the national rule at issue is therefore prohibited under Article 3.

27. The Commission submits that the decisive question is whether Article 94(2) of Regulation No 1408/71 applies to the period when Mr Rothwangl worked for HAL. Whether Mr Rothwangl did or did not complete a period of insurance must be determined under national law. When Mr Rothwangl worked for HAL, he was considered to be resident in the Netherlands under national rules. That gives rise to a sufficiently close link to the Netherlands for the period in question to be classified as a period of insurance under the national rules at issue. Furthermore, the rules on seafarers in Article 13(2)(c) of Regulation No 1408/71 govern not only the determination of the applicable legislation, but also whether a person who is within the scope of Regulation No 1408/71 is entitled to a social security benefit.

28. I disagree with the RSvb’s and the Netherlands Government’s interpretation of Article 2 of Regulation No 1408/71.

29. It is clear that when Mr Rothwangl applied for a pension on 1 December 2008, he was a national of a Member State. He was insured under the Austrian system for old-age pension benefits, which are within the substantive scope of Regulation No 1408/71. ( 21 ) He is claiming pro-rata benefits from the competent Netherlands institution on the basis of the period when he worked for HAL and was subject, in the Netherlands, to the national rules at issue. He therefore falls within the scope of Article 2(1).

30. Indeed, I find the RSvb’s and the Netherlands Government’s position puzzling in that Mr Rothwangl received invalidity benefit from the Netherlands authorities. That benefit is within the substantive scope of Regulation No 1408/71. ( 22 ) It seems to me that there is an inconsistency in so far as he was considered to be within the personal scope of that regulation for the purposes of his claim to invalidity benefit, but is alleged to be excluded for the purposes of his claim to old-age pension benefits.

31. The referring court asks specifically whether the Court’s case-law concerning the interpretation of Article 2 of Regulation No 1408/71, in particular the judgment in Belbouab, ( 23 ) sheds any light on the matter.

32. Mr Belbouab was a French national of Algerian origin, born in 1924. He worked as a miner in France and subsequently emigrated to Germany where he was employed in the same capacity. He made the necessary contributions throughout his employment in both countries. He lost his French nationality when Algeria became independent in 1962. His claim for a miner’s pension in 1964 was rejected by the German authorities. The Court stated that the premiss behind the national court’s questions concerning the interpretation of Article 2 of Regulation No 1408/71 was that Mr Belbouab had to be a national of a Member State when he submitted his claim. That premiss was inconsistent with the principle of legal certainty. The Court ruled that the requirement of being a national of one of the Member States concerns the time of employment, of the payment of the contributions relating to the insurance periods and of the acquisition of the corresponding rights. ( 24 )

33. Here, it is common ground that Mr Rothwangl was a Member State national on 1 December 2008 when he claimed an old-age pension from the Netherlands, but not during the reference period. Did he nevertheless acquire rights during the reference period? That question was not discussed in Belbouab. Mr Belbouab had paid the necessary contributions and had acquired rights during the relevant period. It seems to me that Belbouab does not therefore assist in resolving the present matter.

34. The referring court also asks whether the judgment in Buhari Haji ( 25 ) is relevant. That case concerned a Nigerian national who held British nationality until Nigeria’s independence in 1960. Between 1937 and 1986 Mr Buhari Haji had worked in the Belgian Congo (which on 1 July 1960 became Zaire), and paid contributions to the Belgian social security scheme before Zaire’s independence. The Court ruled that there was no link between the situation of workers who once held the nationality of a State which subsequently became a member of the (then) European Community but who lost that nationality before that State’s accession and the attainment of freedom of movement for employed and self-employed persons within the Community. The position was different only for those in that category who retained the nationality of the State in question after its accession to the Community and whose rights were recognised and protected, under Community social security legislation, by the transitional provisions contained in Articles 94 and 95 of Regulation No 1408/71, which enable all periods of insurance, employment or residence completed prior to accession to be taken into account for the determination of rights to benefits under the provisions of that regulation.

35. Mr Rothwangl’s position is very different from that of Mr Buhari Haji. He did not pay contributions and he was not insured under the Netherlands rules that applied in the reference period. Did he nevertheless acquire rights under Article 94(1) to (3) of Regulation No 1408/71 which should be aggregated to any old-age pension benefits that he is entitled to in Austria?

36. Article 94(1) states that no rights are acquired under Regulation No 1408/71 before its entry into force in the territory of the Member State concerned. ( 26 )

37. In order to enable Regulation No 1408/71 to apply to the future effects of past situations, Article 94(2) then imposes an obligation to take into consideration, for the purposes of determining rights to a benefit, all periods of insurance, employment or residence completed under the legislation of any Member State before 1 October 1972 or before the date of its application in the territory of that Member State. It follows therefore from that provision that a Member State is not entitled to refuse to take into account periods of insurance completed in the territory of another Member State, for the purposes of establishing a claimant’s retirement pension, for the sole reason that such periods were completed before the entry into force of that regulation. ( 27 )

38. A claimant must be able to point to a period of insurance and where appropriate periods of employment or residence completed under the legislation of a Member State before 1 October 1972 ( 28 ) in order to invoke Article 94(2) of Regulation No 1408/71 successfully.

39. It seems to me that those conditions are not invariably cumulative. The words ‘and where appropriate’ suggest that it is not always necessary to show that all three conditions are met. It should be borne in mind that Article 94(2) applies to all social security benefits that fall within the substantive scope of Regulation No 1408/71. The conditions that a claimant is required to fulfil might vary according to the Member State and/or the type of benefit that is at issue. The Netherlands scheme does not (as far as I understand it) require the claimant also to establish that he has completed a period of residence or employment, although it is not in dispute that Mr Rothwangl meets both of those conditions. But the claimant must be able to point to a period of insurance completed under the legislation of a Member State.

40. Can Mr Rothwangl satisfy that condition?

41. The national rules at issue constitute legislation for the purposes of Article 1(j) of Regulation No 1408/71. Pursuant to Article 1(r), periods of insurance are periods of contribution or periods of employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed. That specific reference to domestic legislation clearly shows that Regulation No 1408/71, particularly for the purposes of aggregation of periods of insurance, refers to the conditions to which domestic law subjects recognition of a specific period as equivalent to periods of insurance properly so called. ( 29 )

42. The referring court states that under the national rules that applied during the reference period Mr Rothwangl was not insured, because third-country nationals belonging to the crew of a seagoing vessel who lived on board that vessel were excluded from insurance for old-age pension benefits. It also states unequivocally that the national rules at issue discriminated on the basis of nationality. ( 30 ) Is such discrimination prohibited by Article 3 of Regulation No 1408/71? If so, Mr Rothwangl would be able to claim that he should be treated as though he had completed a period of insurance in the Netherlands even though in fact he does not satisfy that essential component of Article 94(2).

43. Similar questions were examined by the Court in Kauer and Duchon.

44. Mrs Kauer, an Austrian national, claimed an old-age pension in Austria. She had worked and completed periods of compulsory insurance under Austrian legislation. When reckoning the qualifying periods for the purposes of old-age pension insurance the competent institution took account of the period in Austria when she had not worked, but was bringing up her children. Such periods were counted as ‘substitute periods’. However, equivalent periods that Mrs Kauer had spent in Belgium raising children were not counted. The periods spent raising children (in both Austria and Belgium) occurred before Austria acceded to the (then) European Community. The referring court sought guidance as to whether Article 94(1) to (3) of Regulation No 1408/71 precluded national legislation which excluded time spent bringing up children in Belgium from being treated as substitute periods for the purposes of calculating Mrs Kauer’s old-age pension benefits.

45. Mr Duchon was an Austrian national who had worked in Germany prior to Austria’s accession to the Community. During that period he was the victim of an industrial accident. He accordingly received industrial accident benefit from the German authorities. His request for a disability pension from the Austrian authorities with effect from 1 January 1998 was rejected on the grounds that: (i) he had not completed the qualifying period and (ii) as the events relating to the accident occurred in Germany before Austrian accession, he could not rely on the principle of freedom of movement for workers.

46. In both cases, the Court decided that the respective claimants could invoke the transitional provisions in Article 94 of Regulation No 1408/71 and that the Austrian rules that applied to Mrs Kauer and Mr Duchon were prohibited by the principle of non-discrimination. Certain common principles can be identified from the judgments.

47. The Court ruled that in order to give effect to the transitional rules in Article 94(1) to (3) of Regulation No 1408/71, it is necessary to take account of periods of insurance completed before that regulation came into effect. ( 31 ) In both cases, the claimants had been insured under the relevant national rules. The national measures at issue had then to be assessed in the light of Community rules as they applied following Austria’s accession. ( 32 ) The competent institution therefore had to apply the principles relating to the freedom of movement for workers and the transitional rules in Article 94(1) to (3). ( 33 )

48. It is clear from Kauer and Duchon that Mr Rothwangl’s situation should be examined by reference to EU law following Austrian accession to the European Union. What is the consequence of such an analysis?

49. It seems to me that (unfortunately) Mr Rothwangl’s position differs from that of the claimants in those two cases in two important respects.

50. First, the prohibition against discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. ( 34 ) In Kauer the Court found that the national legislation at issue did introduce a difference in treatment, in that it automatically took account of child-raising periods completed in Austria but made consideration of such periods spent in another State party to the EEA subject to receipt of cash maternity allowance or equivalent allowances under federal Austrian legislation. When those differential rules were applied, after Austrian accession to the European Union, to child-raising periods spent both in Austria and in another Member State, such legislation worked to the disadvantage of Community nationals who had resided or worked in Austria and then exercised their right to freedom of movement. ( 35 ) In Duchon the Court identified a clear difference in treatment that was detrimental to Austrian workers who exercised their right to freedom of movement as compared to those who remained in Austria, as the possibility of satisfying the national rules at issue and qualifying for benefits was smaller for the first group. ( 36 )

51. Crucially, in both cases the Court was implicitly prepared to regard the claimants as having exercised EU rights to free movement, even though the ‘movement’ in question took place before Austria’s accession to the EU. Thus, although Belgium could legitimately regard Mrs Kauer as a third country national from the perspective of EU law when she was there from 1970 to 1975 raising her family, and Germany could likewise legitimately regard Mr Duchon as a third country national when he suffered his industrial accident whilst working there in 1968, following Austrian accession to the EU Austria had to regard those periods of time spent ‘abroad’ as being spent in another EU Member State in exercise of free movement rights.

52. It follows that in the present case Austria must regard Mr Rothwangl as having exercised free movement rights even before Austrian accession to the European Union when he worked for HAL on vessels whose home port was in the Netherlands. But, by itself, that is not sufficient to get Mr Rothwangl access to a ‘Netherlands’ increment to his pension. Unlike Mrs Kauer and Mr Duchon, Mr Rothwangl’s difficulty does not lie exclusively (or indeed primarily) with the Austrian rules. It lies with the Netherlands rules that excluded him from coverage whilst he was working for HAL because he was a third country national. And such exclusion, albeit clearly discriminatory on grounds of nationality, was at the time entirely permissible under EU law because Austria was not yet a fellow Member State of the European Union.

53. Second, in Kauer and Duchon it was not in dispute that the respective claimants were affiliated to the national social security system at issue (both cases concerned the Austrian scheme). Put broadly the question was whether periods spent outside Austria should be taken into account when the competent authorities in Austria calculated the benefits to which the claimants were entitled. ( 37 ) In contrast, the Court has no information as to whether Mr Rothwangl was affiliated to the Austrian social security system during the reference period; it is however clear that he acquired no rights under the Netherlands rules that applied during the reference period when he was working for HAL. There are therefore, put simply, no acquired rights upon which the transitional provisions in Article 94(2) of Regulation No 1408/71 can bite. And it would be incompatible with the principle of legal certainty and the express wording of Article 94(1) to confer such rights retrospectively.

54. Unlike the Commission I do not consider that whether Mr Rothwangl had a sufficiently close link to the Netherlands during the reference period is a relevant criterion. Such a condition is not reflected in the wording of Article 94(2) of Regulation No 1408/71. Nor do I believe that Article 13(2)(c) is relevant. The sole purpose of that provision is to determine the national legislation applicable to persons employed on board a vessel flying the flag of a Member State. As such, Article 13(2)(c) of Regulation No 1408/71 does not lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme. It is for the legislation of each Member State to lay down those conditions. ( 38 ) Here, it is not disputed that Mr Rothwangl was subject to Netherlands rules when he worked for HAL and that he was not insured under those rules. Thus, he did not complete a period of insurance for the purposes of Article 94(2).

55. I therefore conclude that a person claiming old-age pension benefits who was not a national of a Member State during the period on the basis of which he claims entitlement does not acquire rights within the meaning of the transitional provisions laid down in Article 94(1) to (3) of Regulation No 1408/71, in circumstances where he has not completed a period of insurance under the legislation of a Member State before his Member State acceded to the European Union, because the period in question does not constitute a period of insurance under the legislation of that Member State. That is so even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71. National rules which excluded such a claimant from insurance under the social security scheme of the Member State concerned during his period of residence and employment are not prohibited by Article 3 of that regulation.

Question 2

56. The referring court asks in Question 2 whether under Article 18 TFEU (the prohibition against discrimination) and Article 45 TFEU (guaranteeing freedom of movement for workers) the Netherlands authorities are required, when calculating Mr Rothwangl’s pension, to disapply the national rules at issue, which excluded seafarers who were third-country nationals from insurance covering old-age pension benefits during the reference period.

57. In my view, the answer to that question is ‘no’.

58. Article 2 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (‘the Act of Accession’) provides that, from the date of accession, the provisions of the original Treaties are to be binding on the new Member States and are to apply in those States under the conditions laid down in those Treaties and in the Act of Accession. The Act of Accession contains no transitional provisions with regard to the application of what are now Article 18 TFEU and Article 45 TFEU. Those provisions must therefore be regarded as being immediately applicable and binding on Austria from the date of its accession, namely 1 January 1995. The corollary is that, with effect from that date, other Member States must treat Austrian nationals as EU citizens.

59. However, nothing in the Act of Accession requires the existing Member States to treat Austrian nationals in the same way as they treated nationals of other Member States prior to accession. ( 39 ) Mr Rothwangl could only insist that the Netherlands treat him as though he had been insured for old-age benefits if he had been entitled to the rights flowing from the provisions governing freedom of movement for workers during the reference period. ( 40 ) But he was not so entitled. Rights under EU law cannot be acquired before accession and as a consequence cannot be recognised after accession when the conditions for their acquisition or existence are not fulfilled. ( 41 )

60. I therefore conclude that Article 18 TFEU and Article 45 TFEU do not, in the context of Austria’s accession to the European Union, preclude national rules such as those at issue in Mr Rothwangl’s case.

Question 3

61. Question 3 essentially concerns Mr Wieland. The referring court asks whether a claimant who is a national of a third State at the time he claims a pension, but who during the reference period was a national of a State that acceded to the European Union after he completed a period of residence and employment in a Member State, is able to benefit from Regulation No 1408/71 because he comes within the scope of Article 1 of Regulation No 859/2003 and can satisfy the transitional provisions in Article 2(1) to (3) of that regulation.

62. It follows from my reasoning in relation to Mr Rothwangl’s case that I consider that he is not.

63. Mr Wieland meets the conditions in Article 1 of Regulation No 859/2003, in so far as he is a US national who is legally resident in Austria and the circumstances relating to his claim are not confined within a single Member State and he is not already covered by those provisions solely on the ground of his nationality. He therefore comes within the scope of that regulation.

64. Article 2(1) to (3) of Regulation No 859/2003 mirror the wording of Article 94(1) to (3) of Regulation No 1408/71. Although Mr Wieland was resident in the Netherlands during the reference period, he — like Mr Rothwangl — was not insured under the Netherlands rules in respect of old-age pension benefits. He did not therefore meet the first condition in Article 2(2) and did not acquire rights within the meaning of that provision. His claim must therefore fail for the same reasons that I have set out in points 35 to 55 above in respect of Mr Rothwangl.

65. The answer to Question 3 should therefore be that a person who falls within the scope of Article 1 of Regulation No 859/2003 and who claims entitlement to old-age pension benefits on the basis of a period before 1 June 2003, is not entitled to rely on the transitional provisions in Article 2(1) to (3) of that regulation where the period in question does not constitute a period of insurance under the legislation of a Member State, even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71.

Conclusion

66. In the light of the foregoing considerations I suggest that the Court should answer the questions raised by the Centrale Raad van Beroep (Higher Social Security Court), the Netherlands, as follows: — A person claiming old-age pension benefits who was not a national of a Member State during the period on the basis of which he claims entitlement does not acquire rights within the meaning of the transitional provisions laid down in Article 94(1) to (3) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community, in circumstances where he has not completed a period of insurance under the legislation of a Member State before his Member State acceded to the European Union, because the period in question does not constitute a period of insurance under the legislation of that Member State. That is so even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71. National rules which excluded such a claimant from insurance under the social security scheme of the Member State concerned during his period of residence and employment are not prohibited by Article 3 of that regulation. — Article 18 TFEU and Article 45 TFEU do not, in the context of Austria’s accession to the European Union, preclude national rules such as those at issue in the main proceedings. — A person who falls within the scope of Article 1 of Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, and who claims entitlement to old-age pension benefits on the basis of a period before 1 June 2003, is not entitled to rely on the transitional provisions in Article 2(1) to (3) of that regulation where the period in question does not constitute a period of insurance under the legislation of a Member State, even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71.

( 1 ) Original language: English.

( 2 ) Council Regulation (EC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Consolidated version — OJ 1997 L 28, p. 1). That regulation has been amended many times; it is the version as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) which applied at the time that Mr Wieland and Mr Rothwangl submitted their claims. Regulation No 1408/71 was repealed and replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1) with effect from 1 May 2010.

( 3 ) Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1).

( 4 ) Hereinafter ‘the reference period’; see further points 16 and 17 below.

( 5 ) Règlement no 3 concernant la sécurité sociale des travailleurs migrants, du 25 septembre 1958 (Journal officiel des communautés européennes 1958, p. 561). No English text of that regulation is available.

( 6 ) Article 4(6) of Regulation No 3/58.

( 7 ) Règlement no 47/67/CEE du Conseil, du 7 mars 1967, modifiant et complétant certaines dispositions des règlements no 3 et 4 concernant la sécurité sociale des travailleurs migrants (gens de mer) (OJ 44, 10.3.1967, p. 641). Again, no English text of that regulation is available.

( 8 ) Article 1(a)(i) of Regulation No 1408/71.

( 9 ) Article 1(j) of Regulation No 1408/71.

( 10 ) Article 1(r) of Regulation No 1408/71.

( 11 ) Article 1(sa) of Regulation No 1408/71.

( 12 ) In 1981, Article 14b of Regulation No 1408/71, inserted by Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation No 1408/71 (OJ 1981 L 143, p. 1), introduced special rules to determine the applicable legislation for seafarers. Those rules, which contain exceptions to Article 13(2)(c) in specific circumstances, are not relevant to the present matter.

( 13 ) Regulation No 1408/71 refers to the legislation of the flag State as the relevant criterion in relation to the determination of the applicable legislation. The flag State of a commercial vessel is the State under whose laws the vessel is registered or licensed. However, Article 3(3) of the AOW refers to a ‘ship’s home port’, which I understand to mean the port at which a vessel is based. That may not necessarily be the same as the port where a vessel is registered.

( 14 ) Pursuant to the Decree on the extension and restriction of the category of persons covered by national insurance (Besluit uitbreiding en beperking kring verzekerden volksverzekeringen; ‘the BUB’), which was amended on a number of occasions between 1959 and 1968. I shall refer to those rules together with the AOW as it applied during the reference period as the ‘national legislation at issue’. The relevant provisions of the BUB were repealed with effect from 1 January 1999.

( 15 ) Eur. Court H. R., no. 34462/97, ECHR 2002-IV.

( 16 ) See point 2 above.

( 17 ) I should here mention the International Labour Organisation (‘ILO’) Seafarers’ Pension Convention, 1946 (No 71), which entered into force on 10 October 1962. The Netherlands ratified that Convention on 27 August 1957. Under Article 1 each Member State of the ILO is subject to an obligation in accordance with national laws or regulations to establish or to secure the establishment of seafarers’ pension schemes. However, non-residents and persons who are not nationals of the Member State concerned may be excluded from such schemes.

( 18 ) See the Commission’s Proposal for a Council Regulation (EC) on coordination of social security systems, COM(1998) 779 final, p. 1.

( 19 ) See the first recital of Regulation No 1408/71.

( 20 ) Judgment in Salemink, C‑347/10, EU:C:2012:17, paragraphs 39 and 40.

( 21 ) Article 4(1)(c) of Regulation No 1408/71.

( 22 ) Article 4(1)(b) of Regulation No 1408/71.

( 23 ) 10/78, EU:C:1978:181.

( 24 ) Judgment in Belbouab, 10/78, EU:C:1978:181, paragraph 7.

( 25 ) C‑105/89, EU:C:1990:402 (‘Buhari Haji’).

( 26 ) Judgment in Duchon, C‑290/00, EU:C:2002:234, paragraph 22 (‘Duchon’).

( 27 ) Duchon, paragraph 23 and the case-law cited. See further judgment in Somova, C‑103/13, EU:C:2014:2334, paragraphs 52 to 54.

( 28 ) For those Member States that acceded to the European Union after Regulation No 1408/71 was adopted, the relevant point is not 1 October 1972, but prior to that regulation taking effect in the Member State concerned. For Austria that date is 1 January 1995.

( 29 ) Judgment in Kauer, C‑28/00, EU:C:2002:82, paragraph 26 and the case-law cited (‘Kauer’).

( 30 ) See point 15 above.

( 31 ) Duchon, paragraph 23. In Kauer the Court ruled that whether the period spent raising children in Belgium was an insurance period for the purposes of old-age pension benefits had to be determined pursuant to Austrian law (paragraphs 33 and 34 of the judgment). The restriction under those rules that prevented that period from being considered as an insurance period (unlike the equivalent period spent in the same way in Austria) was incompatible with Regulation No 1408/71 (paragraphs 42 to 45 of the judgment).

( 32 ) Duchon, paragraph 28.

( 33 ) Duchon, paragraph 32. See also Kauer, paragraphs 45 and 50.

( 34 ) See, amongst many statements of this principle, judgment in Eman and Sevinger, C‑300/04, EU:C:2006:545, paragraph 57.

( 35 ) Kauer, paragraphs 43 and 44.

( 36 ) Duchon, paragraph 29.

( 37 ) See points 44 to 47 above.

( 38 ) Judgment in Bakker, C‑106/11, EU:C:2012:328, paragraph 32 and the case-law cited.

( 39 ) See, by analogy, judgments in Tsiotras, C‑171/91, EU:C:1993:215, paragraph 12, and Andersson and Wåkerås-Andersson, C‑321/97, EU:C:1999:307, paragraph 46.

( 40 ) At the hearing the Netherlands Government and the RSvb confirmed that during the reference period seafarers who were nationals of other Community Member States at that time, such as Italy, were insured for old-age pension benefits because they benefited from the free movement provisions in the Treaty.

( 41 ) See also Opinion of Advocate General Jacobs in ÖsterreichischerGewerkschaftsbund, C‑195/98, EU:C:2000:50, points 148 and 149, first sentence, referring to the judgments in Tsiotras, C‑171/91, EU:C:1993:215, and Andersson and Wåkerås-Andersson, C‑321/97, EU:C:1999:307.