Opinion of Mr Advocate General Mischo delivered on 14 June 1990. - HCM Daalmeijer v Bestuur van de Sociale Verzekeringsbank. - Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. - Social security - Determination of the legislation applicable. - Case C-245/88.



European Court reports 1991 Page I-00555



Opinion of the Advocate-General

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Mr President,

Members of the Court

1. Throughout his working life, Mr Daalmeijer, a Netherlands citizen, has been affiliated to the Dutch general old-age insurance scheme, even during the years in which he was posted abroad as a civil servant in the Ministry of Defence.

2. At the material time, Article 3(4) of the Algemene Ouderdomswet (General Old-age Law) provided as follows:

"A national of the Netherlands residing outside the Netherlands who is in the employment of a Netherlands public body, together with his spouse and children in respect of whom he is entitled to child allowance under the Algemene Kinderbijslagwet, shall be regarded as residing within the Netherlands."

3. Hence Mr Daalmeijer was affiliated to the scheme under the Old-age Law as a result of a provision of that law, and not as a result of a provision of Community law. Moreover, Mr Daalmeijer's last posting abroad, as a civil servant in the Netherlands Ministry of Defence, was to Yugoslavia, which is not a Member State of the Community.

4. On 1 May 1974 Mr Daalmeijer took early retirement and went to live in France together with his wife, where neither of them pursued an activity either as "employed persons" or as "self-employed persons". Until the age of 65 Mr Daalmeijer received benefits under the Netherlands Uitkeringswet Gewezen Militairen (Law on Allowances for Former Members of the Armed Forces).

5. When he reached the age of 65 on 5 October 1982, Mr Daalmeijer was to find that the competent authorities in the Netherlands would not take into consideration for the calculation of his retirement pension under the Old-age Law the years which he and his wife had spent in France.

6. The Old-age Law provides that apart from civil servants in service abroad, the only persons insured under that law are those who reside in the Netherlands and those who, although they are non-residents, are liable to income tax by reason of their employment in the Netherlands.

7. That is why the calculation of Mr Daalmeijer's pension involved the deduction of an amount corresponding to that period, which Mr Daalmeijer is contesting in the main proceedings.

8. I. The first question which has been referred to the Court by the Centrale Raad van Beroep (Court of last instance in social security matters), Utrecht, is as follows:

"Is a (former) official under Article 13(2)(d) of Regulation (EEC) No 1408/71 subject to the legislation of the Member State in whose service he was last employed, even if he and his wife have gone to live in the territory of another Member State, where neither of them has carried on real and actual activities for the purposes of Article 13(2) where they are also not otherwise subject to the legislation of that other Member State by virtue of that provision?"

9. The national court is therefore essentially asking whether, by derogation from the Old-age Law, the view should be taken that under the Community rules on determining the legislation applicable, Mr Daalmeijer and his wife continued to be compulsorily insured under the Old-age Law during the period after their departure for France. The notion underlying that reasoning is that if the Netherlands legislation were designated as the legislation that continued to apply to Mr and Mrs Daalmeijer also during their stay in France, the aforesaid residence requirement could not be relied upon as against them.

10. Article 13 of Council Regulation No 1408/71 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) provides as follows:

"(1) Subject to Article 14c, persons to whom this regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

(2) Subject to Articles 14 to 17:

...

(d) civil servants and persons treated as such shall be subject to the legislation of the Member State to the which the administration employing them is subject".

11. It is not immediately clear why that article should be in issue in the main proceedings since it is manifestly a provision whose aim is to prevent conflicts of legislation and it is clear from the actual wording of the Centrale Raad Van Beroep's first question that no conflict of that kind exists in the circumstances of the case.

12. In reality, the question submitted to the Court can be explained solely by reference to the Court's judgment of 12 June 1986 in Ten Holder (Case 302/84, [1986] ECR 821) which was concerned with Article 13(2)(a) of Regulation No 1408/71. In the operative part of that judgment, the Court held that

"a worker who ceases to carry on an activity in the territory of a Member State and who has not gone to work in the territory of another Member State continues to be subject to the legislation of the Member State in which he was last employed, regardless of the length of time which has elapsed since the termination of the activity in question and the end of the employment relationship."

13. The question is then whether that passage in the Ten Holder judgment is to be interpreted as meaning that a worker (in this case a civil servant) who has been affiliated to the old-age insurance scheme of a Member State and who leaves the territory of the country in question without the legislation of another Member State becoming applicable to him continues to be subject to that scheme and can complete new periods of insurance, and therefore acquire new pension rights, even if he no longer fulfils the requirements for affiliation laid down by that scheme.

14. It should be noted that if such a principle could be elicited from the judgment in Ten Holder, it ought to apply both in relation to countries in which affiliation to the social security scheme depends on the pursuit of a professional or trade activity (as was the case in Ten Holder) and in relation to those in which affiliation depends solely on residence.

15. The result would be that, in Germany for instance, a national of another Member State who had worked in that country and who left it without taking up employment elsewhere would continue to be affiliated to the German social security scheme and to complete fresh periods of insurance, whereas a German worker who remained in Germany after ceasing work would no longer be compulsorily insured. Such a result would evidently be unacceptable.

16. However, that is not the only reason to suggest that the question should be answered in the negative and that in the Ten Holder judgment the Court in fact envisaged only persons who "cease" to carry on an activity temporarily, for instance on grounds of sickness, maternity or unemployment, and not to those who stop work for good.

17. Article 13 has established the principle that the lex loci laboris must prevail over any other potentially relevant legislation. That presupposes the actual pursuit of a professional or trade activity. Article 13 in no way deals with the consequences of a situation where a conflict of legislation comes to an end because the person in question has definitively ceased working.

18. In order to fill a gap in the regulation, the Court could properly extend the scope of Article 13 by means of its judgment in Ten Holder to persons who have temporarily ceased to carry on an activity, since it was necessary, as the Sociale Verzekeringsbank emphasizes, to prevent a migrant worker who established himself in another Member State during a temporary interruption of his activity from being subject to the legislation of that Member State, or a frontier worker from ceasing in principle to be insured in the Member State in which he worked whenever his employment was interrupted on grounds of sickness or maternity.

19. However, it was certainly not the Court's intention to establish a kind of "principle of unlimited affiliation". The Court has consistently held that :

"it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme, which include the conditions governing the cessation of affiliation, provided always that in this connection there is no discrimination between nationals of the host State and nationals of the other Member States". (2)

20. Furthermore, in its judgments in Perenboom (3) and Luijten, (4) and even in Ten Holder, the Court made it clear that the aim of Article 13 is to prevent a worker from being "insured over the same period under the legislation of more than one Member State". The problem underlying this case is quite different, namely the application of the legislation of a single Member State to two successive periods in the life of one person.

21. Finally, in its recent judgment of 6 May 1990 in Kits van Heijningen (Case C-2/89, [1990] ECR I-1755), the Court stated as follows:

"The sole purpose of Article 13(2)(a) of Regulation No 1408/71 is to determine the national legislation applicable to persons employed in the territory of a Member State. (5) As such, it is not intended to 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. As the Court has pointed out several times, it is for the legislature of each Member State to lay down those conditions (see, in particular, the judgment in Case 275/81, Koks v Raad van Arbeit [1982] ECR 3013)".

22. For the sake of completeness, I would cite two further provisions of Regulation No 1408/71 in support of my argument, at least so far as social security schemes specifically based on residence are concerned.

23. Article 9(1) of the regulation provides that:

"The provisions of the legislation of any Member State which make admission to voluntary or optional continued insurance conditional upon residence in the territory of that State shall not apply to persons resident in the territory of another Member State..."

24. In my view, it follows a contrario from that provision that a transfer of residence to the territory of another Member State may in fact affect a person's affiliation to a compulsory insurance scheme based on residence alone and bring such affiliation to an end.

25. Article 10(1) of the regulation provides as follows:

"Save as otherwise provided in this regulation, invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated."

26. I consider that apart from the very specific situations dealt with by the Court in its judgments of 7 November 1973 in Case 51/73 Smieja [1973] ECR 1213, 10 June 1982 in Case 92/81 Camera [1982] ECR 2213 and 2 May 1990 in Case C-293/88 Winter-Lutzins [1990] ECR I-1623, the lifting of the residence requirement provided for by that provision must be interpreted in the manner specified by the Court in its judgment of 20 October 1977 in Case 32/77 Giuliani [1977] ECR 1857, namely that it "has no effect on the acquisition of the right to benefit".

27. To accept the interpretation that a person who has ceased to reside in the Netherlands nevertheless continues, by virtue of Article 13, to complete new periods of insurance there would be tantamount not only to prohibiting that State from basing its general insurance scheme on a residence requirement but also to introducing, by means of an extensive interpretation of Article 13, a principle which the authors of Regulation No 1408/71 precisely did not wish to incorporate in Article 10.

28. Finally, I would draw attention to the adverse consequences which would arise for Member States with general social security schemes if the notion were recognized of "unlimited affiliation". Those consequences are summarized in the Report for the Hearing at the end of the Sociale Verzekeringsbank's observations concerning Question 1.

29. For all those reasons, I may conclude that the question whether or not Mr and Mrs Daalmeijer continued to be insured under the Netherlands Old-age Law as from the time when they established their residence in France must be decided exclusively on the basis of the Netherlands legislation.

30. I therefore propose that the Centrale Raad van Beroep' s first question should be answered as follows:

"When a former civil servant and his spouse have gone to reside in the territory of a Member State other than that in whose service he was last employed, where neither of them has carried on real and actual activities for the purpose of Article 13(2) of Regulation No 1408/71 and where they were not subject to the legislation of that other Member State in any other capacity by virtue of that provision, the question whether the legislation of the Member State of origin still applies to the couple falls to be decided in the light of the provisions of that legislation and not in the light of Article 13(2)(d) of Regulation No 1408/71."

31. II. Question 2, which is set out in the Report for the Hearing, arises only in the event of Question 1 being answered in the affirmative.

32. As I have suggested that Question 1 should essentially be answered in the negative, it is unnecessary for an answer to be given to Question 2.

33. III. Question 3 is worded as follows :

"If Question 1 is answered in the negative and/or Question 2 is answered in the affirmative, what would the answer be if the person referred to in Question 1 received a benefit from the Netherlands during the period in which he was residing in the territory of a Member State other than the Netherlands in connection with the termination of his last employment in the service of the Netherlands (a benefit which by virtue of national law did not result in his being insured under the Old-age Law)?"

34. I note that between the time when he ceased working and the date when he reached the age of 65 Mr Daalmeijer was in receipt of an allowance under the Netherlands Law on Allowances for Former Members of the Armed Forces. Had it been an invalidity pension, he would automatically have continued to be insured under the Old-age Law (6) but, as the national court has pointed out, no such consequence can be attached to the benefit granted to Mr Daalmeijer.

35. Even though that may appear to be a surprising rule, it is difficult to see what provision of Community law would have compelled the Sociale Verzekeringsbank to treat Mr and Mrs Daalmeijer as if they were still compulsorily affiliated to the Old-age Law after transferring their residence to France.

36. As indicated in connection with my proposed answer to Question 1, it is for the legislation of each Member State to determine the conditions in which a person's affiliation to a social security scheme comes to an end.

37. I therefore propose that the Court answer Question 3 as follows :

"The question whether an insured person has remained affiliated to the old-age insurance scheme of his country of origin after settling in another Member State, having regard to the fact that during his period of residence in the territory of another Member State he received a benefit payable by his country of origin, falls to be decided on the basis of the legislation of the country of origin."

Conclusion

38. To recapitulate, the answers I propose to the questions submitted by the Centrale Raad van Beroep, Utrecht, are as follows:

"(1) When a former civil servant and his spouse have gone to reside in the territory of a Member State other than that in whose service he was last employed, where neither of them has carried on real and actual activities for the purposes of Article 13(2) of Regulation No 1408/71 and where they were not subject to the legislation of that other Member State in any other capacity by virtue of that provision, the question whether the legislation of the Member State of origin still applies to the couple falls to be decided in the light of the provisions of that legislation and not in the light of Article 13(2)(d) of Regulation No 1408/71.

(2) The question whether an insured person has remained affiliated to the old-age insurance scheme of his country of origin after settling in another Member State, having regard to the fact that during his period of residence in the territory of another Member State he received a benefit payable by his country of origin, falls to be decided on the basis of the legislation of the country of origin."

(*) Original Language: French.

(1) This regulation was updated by Regulation (EEC) No 2001/83 (OJ 1983 L 230, p. 6) and has since been amended several times, most recently by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1).

(2) Judgment of 12 July 1979 in Case 266/78, Brunori v Landesversicherungsanstalt Rheinprovinz [1975] ECR 2705, at p. 2711 et seq; judgment of 24 August 1980 in Case 110/79, Coonan v Insurance Officer [1980] ECR 1445; judgment of 24 September 1987 in Case 43/86, Sociale Verzekeringsbank v De Rijke [1987] ECR 3611, at p. 3629.

(3) Judgment of 5 May 1987 in Case 102/76, Perenboom v Inspecteur der Directe Belastingen [1977] ECR 815, at paragraph 11.

(4) Judgement of 10 July 1986 in Case 60/85, Luijten v Raad van Arbeid [1986] ECR 2365, at paragraph 13.

(5) Emphasis added.

(6) See the Report for the Hearing in Case 43/86, Sociale Verzekeringsbank v de Rijke [1987] ECR 3611, at p. 3614.

Translation