WRITTEN QUESTION E-2849/99

by Bartho Pronk (PPE-DE) to the Commission

(18 January 2000)

Subject: Access to Social Insurance (Additional Categories of Persons) Decree

In the Netherlands, an amendment to the Access to Social Insurance (Additional Categories of Persons) Decree entered into force on 1 January (new Royal Decree 746). According to the decree, retired people who are in receipt of long-term benefit and reside in another EU Member State are no longer regarded as enjoying insurance cover. Many commentators consider that the decree may violate Regulation 1408/71(1) and European case law.

1. The Netherlands Government does not agree, as witness the reply by State Secretary Hoogervorst to questions tabled by Mrs Verburg, Member of the Lower House of the Netherlands Parliament. The State Secretary invokes the judgment given by the Court of Justice of the European Communities on 11 June 1998 in case C-275/96, A. Kuusijärvi v. Riksförsäkringsverket, and the text of the Regulation as amended in 1991. Does the Commission agree with this reasoning? What might case C-275/96 have to do with the issue, as the undersigned feels that the link between case C-275/96 and the amendment in question is far from obvious?

2. If the Commission considers that the contentious amendment of the contentious decree seems to violate European measures, what will it do about this?

(1) OJ L 149, 5.7.1971, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(25 February 2000)

According to the information in the Commission's possession, it is true that as from 1 January 2000 recipients of long-term social security benefits from the Netherlands (WAO, AOW) granted on the basis of previous occupational activity in that country are no longer regarded as being covered by statutory insurance there if they reside in another Member State. This change in the legislation means that compulsory contributions will no longer be levied and the persons concerned will no longer be entitled, for instance, to family benefits (AKW), survivor's and orphan's pensions (ANW), or to coverage of special medical costs (AWBZ). However, persons aged 65 or over will still have the right to take out voluntary ANW insurance in order to provide social security cover for their survivors.

The question is whether the change is compatible with Community law, in particular certain provisions of 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(1), as interpreted by the Court of Justice, for example in judgment C-275/96(2) delivered on 11 June 1998 (Kuusijarvi case). The substance of this judgment is that Regulation (EEC) No 1408/71 does not preclude the legislation of a Member State from making the right of a person who has ceased all occupational activity in its territory to remain subject to its legislation dependent on continued residence there. The Court also held that if such a person has transferred his residence to another Member State, where he lives with the members of his family, he loses the right to continue to receive family benefits paid under that legislation.

The Commission has received a large number of complaints from persons affected by this change in the Netherlands and has therefore requested further information from the Netherlands authorities so that it can form an opinion on this complex issue. The Commission is carefully examining the detailed reply that it has received from the Netherlands authorities.

(1) OJ L 28, 30.1.1997 (amending).

(2) [ECR 1998 I-3419].