Judgment of the Court (Sixth Chamber) of 30 March 1993. - Bestuur van de Sociale Verzekeringsbank v A. de Wit. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Social security - Special rules for the applciation of the Netherlands legisltaion on general old-age insurance - Concept of residence. - Case C-282/91.



European Court reports 1993 Page I-01221



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Social security for migrant workers ° Old-age and death insurance ° Special rules for the application of the Netherlands legislation on general old-age insurance ° Calculation of insurance periods ° Treatment of periods prior to 1 January 1957 during which the person concerned had a sufficiently close link with the Netherlands as periods of insurance ° Activity abroad as the servant of a legal person governed by Netherlands public law

(Council Regulation No 1408/71, Annex VI, Part J, section 2(a))

Summary

A person who has been employed by a legal person governed by Netherlands public law and who, although residing outside the Netherlands, was, in that capacity, subject to the Netherlands social security legislation, is linked to the Netherlands as closely as a person who resided in that country or carried on an activity as an employed person there for an employer established in that country whilst residing in the territory of another Member State, which cases are expressly provided for by section 2(a) of Part J of Annex VI to Regulation No 1408/71. Such a link must accordingly also be regarded as sufficient in order to require that the periods before 1 January 1957 during which that link existed should be treated as equivalent to periods of insurance under the Netherlands law on general old-age insurance.

It follows that section 2(a) of Part J of Annex VI of that regulation should be interpreted as meaning that the reduction referred to in Article 13(1) of the Netherlands law on general old-age insurance does not apply to periods before 1 January 1957 during which a person who does not satisfy the conditions on the basis of which those periods may be treated as periods of insurance was employed between the ages of 15 and 65 by a legal person governed by Netherlands public law and was, in that capacity, subject to the Netherlands social security legislation, even though he was resident outside the Netherlands.

Parties

In Case C-282/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hoge Raad der Nederlanden for a preliminary ruling in the proceedings pending before that court between

Bestuur van de Sociale Verzekeringsbank

and

A. de Wit

on the interpretation of section 2(a) of Part J of Annex VI to Council Regulation (EEC) No 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 Community, as amended by Council Regulation (EEC) No 2332/89 of 18 July 1989 (OJ 1989 L 224, p. 1) and as previously amended by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, G.F. Mancini, F.A. Schockweiler, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° the Bestuur van de Sociale Verzekeringsbank, by E.H. Pijnacker Hordijk, of the Amsterdam Bar,

° A. de Wit, by himself,

° the Government of the Kingdom of the Netherlands, by B.R. Bot, Secretary General in the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by B.J. Drijber, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument from the Bestuur van de Sociale Verzekeringsbank, the Government of the Kingdom of the Netherlands, represented by J.W. de Zwaan, Assistant Legal Adviser in the Ministry of Foreign Affairs, acting as Agent, and the Commission of the European Communities at the hearing on 29 October 1992,

after hearing the Opinion of the Advocate General at the sitting on 26 November 1992,

gives the following

Judgment

Grounds

1 By order of 30 October 1991, received at the Court on 6 November 1991, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of section 2(a) of Part J of Annex VI to Council Regulation (EEC) No 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 Community, as amended by Council Regulation (EEC) No 2332/89 of 18 July 1989 (OJ 1989 L 224, p. 1) and as previously amended by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 The question arose in proceedings between Mr A. de Wit, a Netherlands national, and the Management Board of the Sociale Verzekeringsbank (hereinafter "the SVB") concerning the calculation of the old-age pension to which Mr de Wit is entitled under the Netherlands General Law on Old-Age Pensions (Algemene Ouderdomswet, hereinafter "the AOW").

3 The AOW, which entered into force on 1 January 1957, provides that any person who reaches the age of 65 is entitled to a full pension if he was insured for a total period of 50 years between the date when he reached 15 years of age and the date when he reached 65 years of age. In principle, residents and non-residents who are subject to income tax in respect of employment in the Netherlands are insured under the AOW. Under Article 13(1) of the AOW, the full pension is to be reduced by 2% for each year during which the person concerned was not insured and for each year in which he failed to pay the contribution due.

4 Article 6(1)(c) of the AOW originally provided that a Netherlands national who resided abroad and received a salary or remuneration from the State in respect of employment performed outside the national territory was also insured under the AOW. With effect from 1 January 1965, however, that provision was repealed and replaced by Article 3(4) of the AOW, under which a Netherlands national who is employed by a legal person governed by Netherlands public law and resides outside the Kingdom, together with his spouse and children in respect of whom he is in receipt of family allowances, are to be deemed to be resident in the Kingdom.

5 Article 3(4) of the AOW was itself repealed with effect from 1 April 1985 and, since then, a Netherlands national who resides outside the Kingdom and is an official of a legal person governed by Netherlands public law is again to be deemed to be insured.

6 In order to allow persons who had already reached the age of 15 years of age on 1 January 1957, the date on which the AOW entered into force, to obtain a full pension on their 65th birthday, the AOW contains transitional rules under which, provided that certain conditions are met, the years between the 15th birthday of the person concerned and 1 January 1957 may be treated as years of insurance. Those conditions are that the person must have resided in the Netherlands, the Netherlands Antilles or Aruba for a period of six years after reaching the age of 59 and that he is residing in the Netherlands at the time when he claims entitlement to the pension.

7 Section 2, headed "Application of Netherlands legislation on general old-age insurance (AOW)", of Part J (Netherlands) of Annex IV to Regulation No 1408/71, as amended by Regulation No 2332/89, (hereinafter "section 2 of Annex VI"), provides as follows:

"(a) The reduction referred to in Article 13(1) of the AOW shall not be applied for calendar years or parts thereof before 1 January 1957 during which a recipient, not satisfying the conditions permitting him to have such years treated as periods of insurance, resided in the territory of the Netherlands between the ages of 15 and 65 years, 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.

...

(e) The provisions referred to in (a), (b), (c) and (d) shall be applied only 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 these Member States."

8 The previous version of those provisions, as laid down by Regulation No 2001/83, was substantively identical, except that in the Dutch version of subsection (a) the expression "resided in the territory of the Netherlands" was used rather than the words "resided in the Netherlands".

9 By virtue of Article 3(7) of Regulation No 2332/89, the new version of Annex VI to Regulation No 1408/71 is applicable with effect from 1 April 1985.

10 It appears from the case file that Mr de Wit resided in the territory of the Netherlands until 20 November 1945. On that date, he became a civil servant in the War Ministry; after that he worked for the Ministry of Foreign Affairs, going on to hold various posts outside the Netherlands. On 27 October 1947 his name was officially removed from the population register of the municipality of Waddinxveen. Mr de Wit resigned from his post on 1 August 1978 and has since lived in Ireland.

11 When, on 10 June 1985, Mr de Wit reached the age of 65, the SVB awarded him 68% of the full pension, on the ground that he had not been insured between 27 October 1947, the date on which his name was deleted from the population register in his municipality of origin, and 1 January 1957, the date on which the AOW entered into force, or between 1 August 1978, the date when he left for Ireland, and 10 June 1985, the date of his 65th birthday, that is to say, for a total period of more than 16 years.

12 Mr de Wit considered that the SVB should not only have treated the period between 10 June 1935, the date of his fifteenth birthday, and 27 October 1947, the date on which his name was deleted from the population register in his municipality of origin, as an insurance period for the purposes of calculating his old-age pension, but also the period between 27 October 1947 and 1 January 1957. In particular, he claimed that the term "residence" used in section 2(a) of Annex VI to Regulation No 1408/71 should be interpreted as extending to "notional residence", as it appeared, between 1 January 1965 and 1 April 1985, in Article 3(4) of the AOW.

13 The dispute on that point between him and SVB was ultimately brought before the Hoge Raad der Nederlanden, which, taking the view that it raised a question concerning the interpretation of section 2(a) of Annex VI to Regulation No 1408/71, referred the following question to the Court of Justice for a preliminary ruling:

"Must the expression 'resided in the territory of the Netherlands' in section 2(a) of Part J of Annex VI to Council Regulation No 1408/71 of 14 June 1971 be interpreted as referring exclusively to actual residence in the territory of the Netherlands or does it also include the notional residence in the Netherlands territory of a Netherlands national residing outside the Kingdom in the service of a body governed by Netherlands public law as provided for in (former) Article 3(4) of the AOW?"

14 Reference is made to the Report for the hearing for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

15 By its question, the national court essentially seeks to establish whether section 2(a) of Annex VI to Regulation No 1408/71 must be interpreted as meaning that the reduction referred to in Article 13(1) of the AOW does not apply to periods prior to 1 January 1957 during which a person who does not satisfy the conditions on the basis of which those periods may be treated as periods of insurance was employed between the ages of 16 and 65 by a legal person governed by Netherlands public law, even though he resided outside the Netherlands.

16 In that regard, it should first be pointed out that, as the Court held in Case 284/84 Spruyt [1986] ECR 685 and Case C-293/88 Winter-Lutzins [1990] ECR I-1623, the provisions of Regulation No 1408/71 and in particular those of Annex VI thereto were adopted to implement Article 51 of the Treaty and must be interpreted in the light of the objective of Article 51, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers, which is one of the foundations of the Community.

17 Article 51 requires the Council to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers, by securing, inter alia, payment of benefits for persons resident in the territories of the Member States. The aim of Articles 48 to 51 of the Treaty would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose their advantages in the field of social security guaranteed to them by the laws of a single Member State.

18 It should next be pointed out that in those judgments the Court also held that the rule set out in Article 10(1) of Regulation No 1408/71 whereby the application of residence clauses is set aside, whose purpose is to guarantee the person concerned his right to social security benefits even after taking up residence in a different Member State and to promote the freedom of movement of workers, by insulating those concerned from the harmful consequences which might result when they transfer their residence from one Member State to another, cannot be applied without restriction to a general old-age insurance scheme, such as the AOW, in which the mere fact of residence in the Netherlands is sufficient qualification for insurance purposes.

19 Although, having regard to that context, the Court held in the aforementioned judgments that section 2(a) of Annex VI to Regulation No 1408/71, together with what is now section 2(e), can, in the case of persons who resided during the six years following their 59th birthday in one or more other Member States (and as long as they reside there), make taking into account periods before the entry into force of the AOW dependent on fulfilling a supplementary condition to the effect that during the relevant periods the person in question resided in the Netherlands or pursued an activity as an employed person in that country, even though that supplementary condition is not required to be fulfilled by persons who were resident for the six years in question in the Netherlands (and who continue to be resident in that country at the time when they claim entitlement to the pension), it should however be noted that the Court considered that such periods provide a sufficient link with the Netherlands for them to be treated as periods of insurance under the AOW (see the judgment in Winter-Lutzins, paragraph 18).

20 It should further be observed that the purpose of the provision in question of Annex VI to Regulation No 1408/71 is to prevent the obstacles which might arise from the transitional AOW rules from impeding the freedom of movement of those persons who, having resided or worked in the Netherlands, wish to move to another Member State (see the judgment in Spruyt, paragraph 22). Accordingly, the provision must be given a broad interpretation in order that the restrictive effects which it is susceptible of having on the free movement of such persons are limited to the utmost and do not go beyond that which is necessary in order to take account of the particular features of a general old-age insurance scheme, such as the AOW, under which, it is recalled, the mere fact of residing in the Netherlands is sufficient in order to be insured.

21 A person who has been employed by a legal person governed by Netherlands public law and who, although residing outside the Netherlands was, in that capacity, subject to the Netherlands social security legislation, is linked to the Netherlands as closely as a person who resided in the Netherlands or pursued an activity as an employed person in the Netherlands for an employer established in that country whilst residing in the territory of another Member State, which cases are expressly provided for by section 2(a) of Part J of Annex VI to Regulation No 1408/71. Such a link must, accordingly, also be regarded as sufficient in order to require that periods before 1 January 1957 during which that link existed should be treated as periods of insurance under the AOW.

22 The answer to the national court' s question must therefore be that section 2(a) of Part J of Annex VI to Regulation No 1408/71 must be interpreted as meaning that the reduction referred to in Article 13(1) of the Algemene Ouderdomswet does not apply to periods before 1 January 1957 during which a person who does not satisfy the conditions on the basis of which those periods may be treated as periods of insurance was employed between the ages of 15 and 65 by a legal person governed by Netherlands public law and was, in that capacity, subject to the Netherlands social security legislation, even though he resided outside the Netherlands.

Decision on costs

Costs

23 The costs incurred by the Netherlands Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Hoge Raad der Nederlanden, by order of 30 October 1991, hereby rules:

Section 2(a) of Part J of Annex VI to Council Regulation (EEC) No 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 Community should be interpreted as meaning that the reduction referred to in Article 13(1) of the Algemene Ouderdomswet does not apply to periods before 1 January 1957 during which a person who does not satisfy the conditions on the basis of which those periods may be treated as periods of insurance was employed between the ages of 15 and 65 by a legal person governed by Netherlands public law and was, in that capacity, subject to the Netherlands social security legislation, even though he resided outside the Netherlands.