CELEX: 61978CC0129
Language: en
Date: 1979-02-15
Title: Opinion of Mr Advocate General Capotorti delivered on 15 February 1979. # Bestuur van de Sociale Verzekeringsbank te Amsterdam v A.E. Lohmann. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Case 129/78.

OPINION OF MR ADVOCATE GENERAL CAPOTORTI
   DELIVERED ON 15 FEBRUARY 1979 (
         1
      )
   
      Mr President,
   
      Members of the Court,
   
            1. 
         
         
            The preliminary questions which give rise to the present case concern the scope of Regulation (EEC) No 1408/71 (on social security for migrant workers) in relation to family allowances for the dependent children of a pensioner, a former civil servant of a Member State. In the main action the person concerned is a Netherlands national, Mr Lohmann, formerly an official of a local authority in the Netherlands who from 1 May 1971 has enjoyed an invalidity pension which he received under the general law on civil pensions. On his removal to Belgium he claimed from the competent Netherlands institution family allowances for a daughter who remained in the Netherlands; his claim was, however, dismissed since the recipient of the pension did not reside in the Netherlands as is required in Article 17 (1) of the Law on family allowances for wage-earners and persons treated as such.
            However, when the person concerned appealed the Raad van Beroep [Social Security Court], Amsterdam, set aside the decision dismissing his claim. The Raad van Beroep considered that Mr Lohmann's insurance rights must be appraised in the light of Regulation (EEC) No 1408/71, Article 77 (2) (a) of which provides that, irrespective of the Member State in whose territory the pensioner or the children are residing, benefits in respect of the dependent children of a pensioner who draws a pension under the ‘legislation’ of one Member State only shall be granted in accordance with the legislation of the Member State responsible for the pension.
            The Netherlands insurance institution then appealed to the Centrale Raad van Beroep [court of last instance in social security matters]. That court, by orders of 13 December 1977 and of 6 June 1978, referred the following preliminary questions to the Court of Justice pursuant to Article 177 of the EEC Treaty:
            
                     ‘1.
                  
                  
                     Does the fact that Article 1 (j) of Regulation No 1408/71 refers only to paragraphs (1) and (2) of Article 4 signify that the limitation contained in paragraph (4) of that article does not relate to the meaning of the term “legislation” where the term is used elsewhere in the regulation?
                  
               
                     2.
                  
                  
                     In connexion with the answer to the previous question or independently thereof, must ’pension under the legislation of one Member State only’ in Article 77 (2) (a) of Regulation No 1408/71 also include pensions payable under a special scheme for civil servants and persons treated as such?‘
                  
               To clarify the first of these questions it should be recalled that the definition of the word ‘legislation’ in Article 1 (j) of Regulation No 1408/71 includes laws, regulations and other provisions of the Member States relating to the sectors of and schemes for social security covered by Article 4 (1) and (2); these ‘sectors’ include, according to paragraph (1) (h), family allowances and (for the purposes of paragraph (2)) by ‘schemes’ must be understood both general and special schemes. Article 4 (4) nevertheless excludes the application of the regulation to special schemes for civil servants and persons treated as such. The Centrale Raad van Beroep wishes to know in substance whether that exclusion must be taken into account in interpreting the expression ‘legislation’, since the said Article 1 (j) does not make any express reference to Article 4 (4). It is clear that if the answer is in the affirmative the concept of a pension payable under the legislation of one Member State only (cf. the said Article 77 (2) (a)) cannot also cover a pension provided for under a special scheme for civil servants; on the other hand, the reverse is the case if the answer is in the negative. The reply to the first question thus of necessity influences the reply to be given to the second question, even though it is the second question which directly concerns the actual problem to be settled by the court in the main action (that is to say, whether or not the person concerned may claim family allowances pursuant to Article 77 (2) (a) of Regulation No 1408/71).
         
      
            2. 
         
         
            An unusual feature of the present case is the fact that the President of the Centrale Raad van Beroep considered it necessary to explain in a letter of 7 June 1978 addressed to the Court of Justice as a clarification of the questions submitted to the latter ‘the facts giving rise to the case and the line of reasoning of the Centrale Raad van Beroep leading to the questions’. In my view, whilst an acquaintance with these factors is helpful, it is not indispensable for an understanding of the questions and for providing a reply. Nevertheless, I feel it is essential for me to comment on a statement in the said letter which gives rise to serious difficulties (the more so in that it seems to concern an essential step in the line of reasoning followed by the court making the reference): the statement, that is, to the effect that Mr Lohmann falls within the sphere of persons covered by Regulation No 1408/71 and that the Netherlands provisions on family allowances for children at issue in the present case fall within the ambit of the matters covered by that regulation.
            In the reasoning of the Netherlands court the two points are related. The letter in fact mentions Article 1 (a) (ii) and Article 2 (1) and (3) of the regulation rsuant to Article 1 (a) (ii) the expre ‘worker’ means ‘any person who mpulsorily insured for one or more e contingencies covered by the branc of social security dealt with in this re ation, under a social security scheme for all residents or for the whole working population if such person can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, or, failing such criteria, is insured for some other contingency specified in Annex V under a scheme for employed persons …’. According to Article 2 (1) the regulation applies to ‘… workers 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 …’. According to Article 2 (3) the regulation applies to civil servants" … where they are or have been subject to the legislation of a Member State to which this regulation applies". The Centrale Raad van Beroep wonders whether or not the two Netherlands laws on family allowances for children to which the person concerned has referred (the so-called general law and the law on family allowances for wage-earners and persons treated as such) are covered by the expression ‘legislation … to which this regulation applies’ and having considered on the basis of Article 4 that they are, it has concluded therefrom that Mr Lohmann is a person covered by that regulation.
            In this connexion the Commission has properly observed that rights to family allowances in situations like that in the present case are not independent rights but are subordinate to other rights and related to the status of the person entitled. It therefore appears to me that a comparison of the laws on family allowances with Regulation No 1408/71 in order to establish whether the former fall within the scope of the latter is a mistaken approach to the problem. In fact, when Article 2 identifies the persons covered by the regulation as workers (and then in paragraph (3) as civil servants) ‘subject to the legislation’ of a Member State the decisive element is the personal situation of the worker, that is the basic insurance scheme by which he is covered. On the other hand, turning to an appraisal of the present case, it appears curious that Mr Lohmann is considered to be covered by Regulation No 1408/71 on the ground that the two laws on family allowances are said to qualify as legislation envisaged by that regulation, in view of the fact that the very point which must be established is whether those two laws are applicable to Mr Lohmann (in pursuance of Article 77 of the regulation).
            The view adopted by the Netherlands court thus appears to me untenable even if it is conceded that in principle the two Netherlands laws on family allowances may fall within the concept of ‘legislation’ for the purposes of the said Article 2 (3). In fact we are aware that the plaintiff does not satisfy all the conditions prescribed by those laws; accordingly, he is not in fact subject to one or other of them.
            It has already emerged that pursuant to Article 2 (3) civil servants can claim to be covered by Regulation No 1408/71 only in so far as they are or have been subject to a national legislation to which the regulation applies. Accordingly, we cannot merely find that the person concerned relies upon national laws to which the regulation is applicable; it is necessary that the conditions for the application of those laws to the person concerned should be fulfilled. In the present case reliance is placed in Regulation No 1408/71 in an endeavour to overcome the difficulty constituted by the failure to fulfil the conditions prescribed by the national legislation, but that failure rules out the application of Article 2 (3). Likewise, it must not be overlooked that Article 2 (3) is in the nature of an exceptional provision. In fact, the harmonization provisions laid down in Regulation No 1408/71 have as their basic purpose the removal, in matters of social security, of obstacles to effective freedom of movement within the Community which Article 48 of the Treaty guarantees for employed persons in the private sector.
            In my view, the only proper way of treating the problem is to establish the scope of Article 4 (4) of Regulation No 1408/71; the interpretation of that provision in fact affects both the question of the persons covered by the regulation and the meaning to be conferred on Article 77 (2), which forms the subjectmatter of the second question of the Netherlands court.
         
      
            3. 
         
         
            Let us then consider whether the lack of any reference to Article 4 (4) in the context of Article 1 (j) of Regulation No 1408/71 might mean that the expression ‘legislation’ is to be understood as extending to special schemes for civil servants. It seems to me clear that the reply must be in the negative. In fact, Article 1 (j) refers specifically to Article 4 (1) and (2) inasmuch as the latter define positively the sectors of and schemes for social security covered by the concept of ‘legislation’. On the other hand, Article 4 (4) indicates the kinds of assistance and the insurance schemes to which the regulation does not apply and, irrespective of any reference, it covers Article 1 (j). Article 2 (3) and Article 77 (2). The foregoing is furthermore in accordance with the system of the EEC Treaty which, in Article 48 (4), expressly rules out the application of the provisions on the free movement of workers within the Community to ‘employment in the public service’.
            The fact that the said Article 1 (j) does not refer to Article 4 as a whole accordingly does not provide a basis for the conclusion suggested by the court making the reference, that the concept of ‘legislation’ for the purposes of the regulation also includes special schemes for civil servants. For that to be so it would be necessary to classify that category of schemes under the provision in the said Article 4 (2) which states that the regulation applies to all general and special social security schemes. However, it is impossible to interpret the said provisions so widely, since paragraph (4) constitutes a restriction on that provision and entirely excludes special schemes for civil servants from the scope of Regulation No 1408/71. There is even less reason, then, to maintain that pursuant to Article 2 (3) Regulation No 1408/71 applies to civil servants ‘where they are or have been subject to the legislation of a Member State to which this regulation applies’. In fact that provision merely means that the regulation applies to civil servants if and in so far as they are or have been subject to a general scheme of social security. In the present case we have seen that Mr Lohmann is covered by a pension scheme restricted to civil servants; accordingly he does not fall within the scope of the persons covered by Regulation No 1408/71.
         
      
            4. 
         
         
            On the basis of the considerations which I have set out above I conclude by suggesting that the Court of Justice should answer the preliminary questions submitted by the Centrale Raad van Beroep, by orders of 13 December 1977 and 6 June 1978, with the following ruling:
            
                     (a)
                  
                  
                     The fact that Article 1 (j) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 refers only to Article 4 (1) and (2) does not in any way restrict the general scope of the provisions of Article 4 (4) which exclude from the scope of the regulation inter alia special schemes for civil servants and persons treated as such.
                  
               
                     (b)
                  
                  
                     Consequently, a pension payable under a special scheme for civil servants is not covered by the expression ‘pension under the legislation of one Member State only’ referred to in Article 77 (2) (a) of Regulation No 1408/71.
                  
               
      (
         1
      )	Translated from the Italian.