WRITTEN QUESTION E-2263/01 by Bartho Pronk (PPE-DE) to the Commission. Non-compliance with the case law of the Court of Justice by the Belgian State Pensions Service.
Date: 2001-07-31
Institutions: European Parliament, Provisional data
Subjects: Belgium, application of EU law, case-law (EU), cumulative pension entitlement, pension scheme, social security legislation

C 40 E/230

Official Journal of the European Communities

EN

14.2.2002

In Snares (3) the Court of Justice confirmed in principle the compatibility of this derogation from the
principle of the exportability of social security benefits with the EC Treaty, notably in the case of benefits
which are closely linked to a specific economic and social context. However, as the Honourable Member
indicates in his question, the Court has supplemented this case law by the judgments handed down in
Jauch (4) and Leclere (5). In these judgments the Court held that the derogation in respect of exportability
resulting from the inclusion of certain benefits in Annex IIa is incompatible with the principle of free
movement of workers laid down in the EC Treaty, particularly where these were not special benefits but
related to the traditional areas of social security.

In the light of this jurisprudence, the Commission is currently examining whether the benefits listed in
Annex IIa always meet the criteria laid down by the Court of Justice to justify their non-exportability. This
examination concerns not only the Netherlands benefit (cid:145)Wajong(cid:146) but all the benefits in the Annex. The
Commission plans to present to the Community legislator a package of amendments to Regulation (EEC)
No 1408/71 before year(cid:146)s end. In this package the Commission proposes to remove from Annex IIa those
entries which it feels are no longer justified, such as the Austrian and Luxembourg benefits which the
Court, in its Jauch and Leclere judgements, deemed appropriate for exportation.

(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed
persons and their families moving within the Community (OJ L 149, 5.7.1971), Regulation updated by Regulation
(EC) No 118/97 (OJ L 28, 30.1.1997).

(2) See Article 4(2)a and Article 10 of Regulation 1408/71, introduced by Regulation (EEC) No 1247/92 (OJ L 136,

19.5.1992).
Judgment of 4 November 1997, Snares, C-20/96, ECR, p. I-6057.
Judgment of 8 March 2001, Jauch, C-215/99, not yet published.
Judgment of 31 May 2001, Leclere, C-43/99, not yet published.

(3)
(4)
(5)

(2002/C 40 E/249)

WRITTEN QUESTION E-2263/01

by Bartho Pronk (PPE-DE) to the Commission

(31 July 2001)

Subject: Non-compliance with the case law of the Court of Justice by the Belgian State Pensions Service

The overriding principle of social security law is that the Member States are entitled to maintain their own
social security schemes. In practice, this can have unfortunate outcomes, which have to be corrected by the
European Court of Justice and other courts. On 26 September 2000 the Court of Justice gave its decision
in a case involving the Belgian State Pensions Service and R Engelbrecht.

At issue in this case was Article 3(8) of the Belgian law of 20 July 1990. This law states that the pension of
a married couple is reduced where the other partner is in receipt of a pension (i.e. the partner other than
that entitled to the pension concerned). In this particular case, Engelbrecht(cid:146)s partner was in receipt of a
Dutch AOW allowance, which, under the AOW system, entailed no change in the couple(cid:146)s income. The
Court of Justice ruled that this provision constituted an obstacle to the free movement of workers and was
therefore inadmissible.

Is the Commission aware of the fact that Belgium still applies Article 3(8) of the Belgian law of

1.
20 July 1990?

Is the Commission prepared to draw the attention of the Belgian government to the fact that this

2.
legislation may no longer be applied in cases similar to the Engelbrecht case?

3.

Does the Commission intend to apply Article 228 of the EC Treaty to Belgium?

Does the Belgian State Pensions Service, as a party in the Engelbrecht
4.
responsibility of its own to apply the judgment in this case to other interested parties?

judgment, not have a

5.
Does the Commission consider that the Belgian government is liable to pay compensation, now that
a body under its responsibility is incorrectly applying the case law of the Court, causing prejudice to
individuals?

14.2.2002

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Official Journal of the European Communities

C 40 E/231

Answer given by Mrs Diamantopoulou on behalf of the Commission

(4 September 2001)

The Commission(cid:146)s attention has recently been drawn to complaints concerning the failure by the Belgian
authorities to apply the case law of the Court of Justice laid down in the judgment in the Engelbrecht case,
C-262/97 (1), to which the Honourable Member refers.

On 18 July 2001, the Commission therefore contacted the Belgian authorities to ask what measures had
been taken to comply with the case law in cases similar to that of Mr Engelbrecht. The Commission
pointed out that the nature of their reply or failure to reply within two months might induce the
Commission to initiate, where appropriate,
the infringement procedure referred to in Article 226
(ex Article 169) of the EC Treaty.

The Commission would point out to the Honourable Member that the procedure referred to in Article 228
(ex Article 171) of the EC Treaty implies that the Court has already previously condemned a Member State
for infringement under the procedure referred to in Article 226 of the EC Treaty, after having established
that the latter had failed to meet its obligations. That procedure therefore cannot be initiated for failure to
implement a judgment issued following a request for a preliminary ruling, as in the case in question.

Finally, any obligation to pay compensation/interest implies that a flagrant violation of Community law
has been established (2), the amount being determined by national courts under the national appeals
procedure.

(1) OJ C 295, 27.9.1997.
(2) See the Court(cid:146)s judgment of 28 June 2001, Gervais Larsy v. Institut national d(cid:146)assurances sociales pour travailleurs

indØpendants (INASTI), Case C-118/00.

(2002/C 40 E/250)

WRITTEN QUESTION E-2278/01

by Herman Schmid (GUE/NGL) to the Commission

(31 July 2001)

Subject: Rules governing EU passports

On inquiry the National Police Board in Sweden has told me that I am not allowed to have the fact that I
am a Member of
Is this a correct
the European Parliament entered in my Swedish EU passport.
interpretation of the rules in force?

Answer given by Mr Vitorino on behalf of the Commission

(14 September 2001)

By Resolutions of 23 June 1981 (1), 30 June 1982 (2), 14 July 1986 (3) and 10 July 1995 (4),
the
Representatives of the Governments of the Member States meeting in the Council established a uniform
model passport and decided on the adaptations needed following the entry into force of the Treaty on
European Union.

In the uniform passport
nationality, date of birth, sex, place of birth, date issued, date of expiry, authority, bearer(cid:146)s signature.

information are to be entered: name,

the following items of

forenames,

There is basically no requirement for the bearer(cid:146)s occupation or status to be entered.

But the Resolutions leave the Member States with considerable scope for discretion. For example, it is for
the Member States to determine whether they will issue this kind of passport to persons other than their
own nationals. And in certain situations they may issue passports of a different kind, such as diplomatic or
service passports.

(1) OJ C 241, 19.9.1981.
(2) OJ C 179, 16.7.1982.
(3) OJ C 185, 24.7.1986.
(4) OJ C 200, 4.8.1995.