CELEX: 61981CC0276
Language: en
Date: 1982-06-17
Title: Opinion of Mr Advocate General VerLoren van Themaat delivered on 17 June 1982. # Board of the Sociale Verzekeringsbank V Heirs or assigns of G.T. Kuijpers. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Social security - Affiliation to Member States' schemes. # Case 276/81.

OPINION OF MR ADVOCATE GENERAL
      VERLOREN VAN THEMAAT
      DELIVERED ON 17 JUNE 1982 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      1. Introduction
      In this case the Netherlands Centrale Raad van Beroep [court of last instance in social security matters] asks the Court for a preliminary ruling in an action between the Board of the Sociale Verzekeringsbank [Social Insurance Bank] and the heirs or assigns of G. T. Kuijpers.
      The action concerns the interpretation of the provisions contained in Regulation No 3 and Regulation No 1408/71 on the determination of the legislation applicable in relation to the rules governing the question whether or not a person is insured under the Netherlands Algemene Ouderdomswet [Law on General Old-Age Insurance, hereinafter referred to as “the Old Age Law”], because he is already insured in another Member State. Although the applicable national and Community law are substantially the same, this case concerns a different question from that referred to the Court in Case 275/81, Koks v Raad van Arbeid. That case related chiefly to the position of the married woman under the Old-Age Law in the light of the provisions concerning the legislation applicable by virtue of Community law.
      2. Facts
      The facts, for which I refer primanlv to the report for the hearing, may be summarized as follows.
      Mr Kuijpers was born on 22 July 1911 and was of Netherlands nationality. After 1 January 1957 while living in the Netherlands he worked both in the Netherlands and in Belgium.
      In Belgium he worked as a carter in a coal-mine. 1 January 1957 is mentioned here purely because the Old-Age Law entered into force on that date. In addition, from 1 June 1966 to 19 December 1972 he worked in the Netherlands as a cleaner in the evenings, five days a week from 6 p.m. to 9 p.m. At the end of 1972 or the beginning of 1973, Mr Kuijpers became unfit for work and was therefore awarded a Belgian invalidity pension as well as a benefit under the Netherlands Ziektewet [Law on Sickness] and the Wet op de Arbeidsongeschiktheidsuitkering [Law on Insurance against Incapacity for Work]. From the file it may be inferred that Mr Kuijpers resided in the Netherlands.
      With effect from 1 July 1976, Mr Kuijpers, who attained the age of 65 on 22 July 1976, was granted an old-age pension under the Old-Age Law.
      The old-age benefit was reduced bv 32%. Under the Old-Age Law. a reduction is made from the total benefit for everv calendar vear in which the person entitled to the Pension was not insured during the period between his 15th and 65th birthdays. In short, for a single person the reduction amounts to 2% for every uninsured year and for married couples 1 % for each partner for each uninsured calendar year.
      The period before 1957, in respect of which persons were deemed to have been insured, is not important in this case.
      The reduction was fixed at 32%, since Mr Kuijpers was employed in Belgium from 1957 to 1972 and was regarded under the Old-Age Law as uninsured during that period. That involved a reduction of 16% for Mr Kuijpers and a reduction of the same amount for Mrs Kuijpers.
      The Centrale Raad van Beroep questions how far Mr Kuijpers may also be regarded as uninsured under the Old-Age Law during the period in which he was employed both in Belgium and in the Netherlands, having regard to the provisions relating to the legislation applicable in Regulation No 3 and Regulation No 1408/71. In the event of those provisions' preventing a reduction for that period, the total reduction would be limited to 20%.
      The Centrale Raad van Beroep therefore refers to the Court for a preliminary ruling on the following question:
      “Must Article 13 (c) Regulation No 3 and Article 14 (1) (c) (i) of Regulation No 1408/71 be interpreted as meaning that a national provision of a Member Slate is incompatible with those two provisions it its effect is such tha: a worker residing in that Member State is not insured tor the purposes of an old-age pension because he is insured for such purposes under the legislation of another Member State, even if he resides in the territory of the first-mentioned Member State and is employed in that Sute (albeit in what must be regarded as a secondary occupation) as well as working in the other Member State?”
      The Centrale Raad amplifies the question for a preliminary ruling by adding that, according to the judgment of this Court in Case 110/79, Coonan v Insurance Officer, [1980] ECR 1445, “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 or to a particular branch under such a scheme, provided always that in this connection there is no discrimination between nationals of the host State and nationals of the other Member States”. However, the Centrale Raad questions whether in this case a different view should be taken, since both the provisions of Community law cited above and those of national law seek to delimit the area of application of national social security schemes with respect to one another.
      3. The national legislation applicable
      The Netherlands Old-Age Law is a so-called “volksversekenng” [national social insurance scheme] which is not limned to workers bui applies in principle to all residents. The period of insurance determines the amount of benefits, whiie the contributions paid do not affect this. The full pension unoer the Old-Age Law is paid in the event of a compiete insurance period of 52 years. According to Article 6 of the Law, a person who has reached the age of 15 but has not yet reached the age of 63 is insured if: “(a) he is resident, (b) not resident, but subject to income tax on account of work carried out in paid employment within the Kingdom”. Moreover, according to that article, the class of insured persons may be extended or limited by or under a royal decree.
      Consequently, Article 2 (a) of the Royal Decree of 18 October 1968, Staatsblad, p. 575, provides inter alia that the following persons are not to be treated as insured persons for the purposes of the Old-Age Law: “Residents who are employed outside the Netherlands and by virtue of that employment are insured under legislation on old age ... in force in the country in which they work”.
      The statement of reasons for that provision, which appear in the file relating to Case 275/81, Koks, provides as follows:
      “The purpose of this provision is to exclude from Netherlands old-age insurance frontier workers who are resident in the Netherlands but work abroad and are therefore insured against the pecuniary consequences of old age, in order to prevent duplication of insurance.
      This exception to insurance under the Old-Age Law applies regardless of wnether the person concerned is also employed in the Netherlands during the same period or is in receipt of income there. Insurance under a legislation in another country as a result of work earned out as an emplovee therefore always prevails over insurance under the Old-Age Law This is the only way in which a practicable system may be achieved”
      Furthermore, a married woman whose husband is not insured inter alia for the reasons stated is regarded as not insured.
      4. The Community legislation applicable
      Regulation No 3, and Regulation No 1408/71 which replaced it in 1972, were adopted by the Council pursuant to Article 51 of the EEC Treaty in order to bring about freedom of movement for workers.
      Articles 12 to 15 inclusive of Regulation No 3 and Articles 13 to 17 inclusive of Regulation No 1408/71 are included in Tide II which according to Regulation No 1408/71 is concerned with the “determination of the legislation applicable”.
      As Mr Advocate General Warner stated in his Opinion in Case 8/75 Caisse Primaire d'Assurance-Maladie de Sélestat v Foot-Ball Club d'Andku [1975] ECR 739, the purpose of those articles was to ensure that, in general, a worker should be subject to the social security legislation of only one Member Sute, so as to avoid, in the interests not only of the worker himself and his employer but also of the social security institutions of the Member States, unnecessary duplications and complications, which might constitute obstacles to the free movement of workers (for example, Case 92/63 Nonnenmacher v Sociale Verzekeringsbank [1964] ECR 281 at pp. 288 and 289; Case 19/67 Sociale Verzekeringsbank v Van der Vecht [1967] ECR 345 ai p. 354; Case 73/72 Bentztnger v Steinbruchs-Berufigenossenschafi [1973] ECR 283; Case 13/73 Angenteux v Hakenberg [1973] ECR 935; Case 8/75 Cause Primaire dAssurance-Maladie de Sėlestat v Foot-Ball Club dAndlau [1975] ECR 739; Case 102/76 Perenboom v Inipecteur der Directe Belastingen te Sijmegen [1977] ECR 815).
      The principle laid down in those judgments is expressly set out in Article 13 (1) of Regulation No 1408/71, whilst such a provision did not appear in Regulation No 3. The rule is expressed as follows: “A worker 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”.
      Although this dispute arose under the operation of Regulation No 3 and that regulation is expressly referred to in the preliminary question, in addition to Regulation No 1408/71, I shall examine the question on the basis of the relevant provisions of Regulation No 1408/71. The text of these provisions is virtually identical in the two regulations. In my opinion, certain differences in wording do not entail any difference in legal consequences. As I have already said, there is no express provision in Regulation No 3 such as that contained in Article 13(1) of Regulation No 1408/71 to the effect that a worker may be subject to the legislation of a single Member Sute only; however, according to the case-law of the Court, that principle also applied to the earlier regulation in so far as an increase in cost would not be coupled with a corresponding addition to social security. The provision contained in aniele 13(1) (c) of Regulation No 3 was inserted by Regulation No 24/64 of 10 March 1964.
      5. The relevant provisions of Community law
      The basic rule is that the worker is subiect to the legislation ot ine Member State in which he is employed, even if he resides in another Member State. Thai provision appears in Article 13 (2), which reads as follows:
      “Subject to the provisions of Articles 14 to 17:
      
               (a)
            
            
               a worker employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State ...”.
            
         Article 14 (1) (a) to (d) inclusive then lays down a number of exceptions to that rule. Those exceptions relate to various situations. Article 14 (1) (a) lays down the law which is applicable in the event of a temporary posting to a Member Sute other than that in which the underuking is esublished; subparagraph (b) relates to a worker employed in international transpon, subparagraph (c) concerns a worker, “other than one employed in international transpon, who normally pursues his activity in the territory of two or more Member States”, and finally subparagraph (d) sets out the rules applicable where an undertaking straddles the common frontier.
      These exceptions to the principle that the legislation applicable to a worker is thai o: the Member State in which he is employed are intended to prevent the application bv vinue of that rule of the legislation of each of several Member States in which activities are pursued (tor example, Case 73/72 Bentzingcr, paragraph 3).
      It may be inferred from the wording of the question referred to the board for a preliminary ruling and also from the facts relating thereto that the national coun wishes to obtain a ruling on the national legislation in so far as it relates to a worker who resides in the Netherlands and is employed in another Member State and also in the Netherlands.
      This situation is covered by the exception referred to in Article 14 (1) (c) (i) which reads as follows:
      
               “(c)
            
            
               a worker, other than one employed in international transport, who normally pursues his activity in the territory of two or more Member States shall be subject:
               
                        (i)
                     
                     
                        to the legislation of the Member Sute in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States;”.
                     
                  
         That rule is in itself clear and seems to give nse to few problems. At first sight, it clearlv follows thai in this case the Netherlands legislation is applicable.
      However, the problem arises out of the fact that the national legislation excludes from its application a worker who is emploved in another Member State and is also insured there, regardless of whether or not he at the same time pursues activities in the country in which he resides That exception raises no problems in relation to the situation arising out of the main rule, that is to sav. that in which the worker is emploved in another Member Sute although he resides in the Netherlands. The Netherlands rule is in that case compatible with the main rule of the “legislation applicable”, as laid down in Article 13 (2) (a).
      However, the exception also applies where activities are at the same time pursued in the Netherlands. As I have already mentioned, that situation is in fan expressly referred to in the statement of reasons relating to the national rules.
      The question is how far is that exception compatible with the provision conuined in Article 14 (1) (c) (i). The Centrale Raad entertains some doubts over the application of that article of the regulation because of the Court's judgment in the Coonan case. As I have already suted, it was held in that case that it is for the legislature of each Member State to lay down the conditions for affiliation to a social security scheme.
      Furthermore, Title II of the regulation refers to the “legislation applicable”. However, in accordance with the Court's judgment in the Coonan case, the legislation thereby determined does not necessarily have to provide for actual affiliation.
      The question how far the relevant national rules are compatible with the said provision of Community law may be viewed as follows.
      On the one hand, it should be borne in mind thai the purpose of the Community rules is to avoid confusion and overlapping liabilities which may arise from simultaneous application of the different systems of the various Member States. The national rules in question prevent such undesirable confusion by excluding the application of national legislation and providing that the legislation of the Member State where the worker is employed is applicable. In that connection it should above all be noted ihat that clarity is only obtained in so far as both residence and employment are confined to the State where the worker resides and a second Member State. In the event of the worker's being employed in more than two Member States, the national rules in question do not provide any clarification with regard to the legislation applicable, except that they exclude the application of their own legislation. They do not, however, indicate which legislation should be applied.
      Moreover, it could be argued that the rule laid down in the regulation is applicable only in those cases where there is a clear conflict of national rules, that is to say, in those cases in which the national rules are in fact applicable. In this case, however, no such conflict arises because of the national rule of exclusion.
      It is however, more important that, since the regulation lays down a rule in the event of conflict, it is not for the Member State itself to lay down a rule whereby — at the expense of other Member States — the concurrent application of different legislations is avoided. In this regard, account must be taken of the obiective of Regulation No 3 and Regulation No 1498/71 in general and of the articles applicable in this case in particular. In my opinion they constitute arrangements which, in view of the fact that they are expressed to be compulsory, contain a uniform system to prevent conflict of laws (for example. Case 92/63 Nonnenmacher v Sociale
            Verzekeringshank [1964] ECR 281 : Case 184/80 Beeck v Bundesanstalt fur Arbeit [1981] ECR 583 at p. 513. paragraph 7). In my view, this clearly follows inter alia from the wording ot the second sentence of Article 13 (1), where it is stated: “That legislation shall be determined in accordance with the provisions of this Title”.
      In my view the rules are applicable not onlv in the event of conflict but are also intended to prevent such conflict by providing for the application of a single specific legislation. It is not for that legislation itself to lay down a rule in the event of conflict, providing for the application of another legislation. That is in mv opinion the difference between this case and the judgments of the Court in Case 266/78 Brunori v Landesversicherungsanstalt Rheinprovinz [1979] ECR 2705 and Case 110/79, Coonan. Those cases related to the conditions for affiliation to a national system, in respect of which the regulation itself contained no provision. This case does not concern the question to what extent the migrant worker may be affiliated to a national system on the basis of the national rules, but rather, as the Centrale Raad in my opinion correctly points out, the application of a national rule in the event of conflict, in respect of which the regulation itself contains a rule.
      Furthermore, the judgment of the Court in Case 8/73, Foot-Ball Club d'Andlau should once again be mentioned here. In that case the Court in fact considered that the basic premise in applying that rule, which provides for the legislation of the place of residence to be applied where a worker is emploved both in the place of residence and also in another Member State, “is that the worker is affiliated to a social secuntv institution in the State where he had his permanent residence” (paragraph 8 of the decisioni. However, it it should appear that he is not affiliated to thai institution, the applicable legislation must be determined on the basis of the general rule, that is to say, the legislation of the country where he is employed.
      That judgment is not in my opinion incompatible with the view which I have put forward in this case. In Case 8/75, it was not at all certain whether the German musicians concerned were in fact covered by a social security scheme in Germany within the meaning of the regulation. If they were not in fact insured in their place of residence, the rule in question would lead to a legal void in so far as they appeared in France. Therefore the Court stated that in so far as they were not affiliated to the social security scheme of the Member State in question, within the meaning of the regulation, the legislation of the Member State in which they were employed should be applicable. Moreover, it may be stated that if the German musicians were not covered by a German social security scheme within the meaning of the regulation there was in fact no conflict between the various legislations applicable. That is also the reason why the general principle was held to be applicable in that case.
      In my opinion, the situation in Case 6/75 related to a different set of facts from those concerned in this case. In the proceedings for a preliminary ruling before the Court todav the question is not whether the national rules are applicable to a worker, having regard to the character of the Old-Age Law as constituting national social insurance for residents but whether the application of those rules is excluded where the worker n insured in another Member State In mv view, the question of excluding the application of rules only arises if those rules are applicable in principle Moreover, as 1 have aireadv remarked, any exclusion is in my judgment wholly determined by Community law.
      6. Main activity and secondary activity
      Before giving an opinion on the preliminary question put to the Court, I should further consider how far the fact that Mr Kuijpers' activities in the Netherlands must be regarded as a secondary occupation affects the application of the legislation of the place of residence. As has been mentioned, Mr Kuijpers worked in Belgium as a carter in a coal-mine and also worked in the Netherlands five days a week in the evenings from 6 p.m. to 9 p.m. In its written observations, the Board of the Sociale Verzekeringsbank observed that since his main activities were pursued in Belgium and his activities in the Netherlands were only secondary, the legislation of the place of residence was not applicable. On that view, the regulation provides a system primarily in relation to full-time activities. Therefore in this case the Belgian legislation would be applicable.
      In reply to a written question put to it by the Court on that point, the Commission stated that the regulation makes no such distinction between main and secondary activities. Such a refinement of the regulation might entail undesirable obscurity, since it is not always easy to determine which activities are to be regarded as main and which as secondary.
      I agree with the Commission's view on this point. In my opinion, great importance should be attributed to the wording of the article, since it sets out a rule whose very purpose is to make for clariry. The aniele in question refers to the pursuit of activities “partly” in the territory of the place of residence. No other condition is laid down. The authors of the regulation clearly considered that no further refinement of the provision was necessary. In that connection, I would point out that the words “is employed principally” in fact appear in Article 14 (1) (b) (ii) in relation to workers employed in international transport. Thus such a distinction does in fact exist in the regulation.
      In general it may further be stated that the determination of rules applicable in the event of conflict is based on a assessment of the interests at stake. In the case of the general rule, the interest connected with the application of the legislation of the Member State where the worker is employed, even if he resides in another Member State, is regarded as more important than that connected with the legislation of the place of residence, even if that general rule need not always be favourable to the person concerned in such a situation. However, where several legislations are applicable on the basis of that general rule because the person concerned is employed in several Member States, priority is given to the application of the legislation of the place of residence, where the activities are partly pursued there. In that situation, the legislation of the place of residence is clearly given priority since the place of residence represents a certain stability in the whole complex of relationships and therefore may be assumed to be the closest connecting factor.
      In addition, I would point out that in answer to the question put to n by the Court the Commission referred to Article Mia) of Regulation No 1390/81, a regulation which amends Regulation No 1408/71 by extending social security schemes to self-employed persons (Official Journal 1981, L 143, p. 1). This regulation has moreover not yet entered into force. It seems that Article 14 (a) (2) provides that the main activity is to constitute the criterion for the applicable legislation only in the case of a self-employed person who pursues his activity in two or more Member States but not in the Member State in which he resides. I consider it significant that it is expressly provided in that aniele that the criteria to be used to determine the principal activity are to be laid down. From this it is apparent that such uniform criteria are desirable in order to achieve the objective of clarity.
      On the basis of the considerations set out above, I therefore take view that the division of activities into main and secondary activities has no effect on the rule laid down in Article 14 (1) (c) (i) in regard to conflict.
      7. Regulation No 3
      A I have already stated, I shall also examine how far a difference between Regulation No 3 and No 1408/71 leads to a difference in the legal consequences for the purposes of the preliminary question with which we are concerned. I have already stated that Regulation No 3 clearly differs from Regulation No 1408/71 only in so far as the latter expressly provides that only one legislation may be applicable.
      In my view, from the absence of an express rule of that nature in Regulation No 3 the Court has inferred that the simultaneous application of more than one legislation is permissible, in so far as it is also possible to derive from them corresponding rights. It would not be permissible to declare applicable, in addition to the legislation stated to be applicable by the regulation itself, legislation which creates obligations or reduces benefits without giving rise to corresponding advantages (for example, Case 92/63 Nonnenmacher [1964] ECR 281; Case 19/67 Van der Vecht, [1967] ECR 345).
      In my view this means, so far as this case is concerned, that it was not permissible under Regulation No 3 for national legislation to provide that it was not applicable, in derogation from the rule laid dovn in the regulation governing the event of conflict. As regards the question how far the exclusion in this case differs from the other rules in the event of conflict, I would refer to the observations which I have already made with regard to Article 14 (1) (c) (i) of Regulation No 1408/71, which also applv to Article 13 (c) of Regulation No 3.
      8. Payment of contributions
      Finally I would point out that from the Sociale Verzekeringsbank's reply to the question put to it by the Court it became clear that the person concerned may in fact have paid contributions in the Netherlands during the period in question. On the one hand, the person concerned is not to be regarded as an insured person within the meaning of the Old-Age Law on the basis of the national rules applicable during the period in question On the other hand, it appears that contributions were in fact paid without its being possible to ascertain whether they were later refunded or should be regarded as voluntary contributions.
      In this connection it is worth noting that in its reply to the question put to it by the court the Sociale Verzekeringsbank also states that in its written observations in this case it deliberately did not consider the aspect of the payment of contributions. It takes the view that that aspect of the case is irrelevant, since for the Centrale Raad van Beroep that criterion is of no importance in determining whether a person is to be regarded as an insured person within the meaning of the Old-Age Law.
      Even if the question of the payment of contributions is, as has been stated by the Sociale Verzekeringsbank, of no importance under national law, it seems to me that criterion may in fact be relevant under Community law.
      As I have already pointed out, it has been held by this Court that, so far as Regulation No 3 was concerned, the simultaneous application of more than one legislation of different Member States was not excluded, in so far as the increase in contributions was coupled with a corresponding supplement in social security benefits.
      In those cases, the Court had in mind not only the application of a social security scheme in general but also its application in the individual case. Although the Netherlands scheme did not in itself require the payment of contributions by the person concerned in this case, the de facto payment of such contributions must be rfgarded as incompatible with the case-law of the Court. That reasoning applies a fortiori to the application of Regulation No 1408/71 in this context, since it provides for the compulsory application of a single legislation of each Member State. However, in my opinion that problem is of no importance in this case, as I take the view that on the basis of the Community rules as laid down in Article 13 (c) of Regulation No 3 and Article 14 (1) (c) (i) of Regulation No 1408/71 the Netherlands legislation must be applicable.
      9. Conclusion
      On the basis of the considerations set out above, I propose that the Court should reply to the Centrale Raad %-an Beroep in the terms suggested by the Commission. In my view, there is no need for the Court in its reply to refer to the problems which have been raised in relation to the division of activities into main and secondary activities, since the national rules themselves contain no such distinction.
      Thus the reply should in my opinion be worded as follows:
      Article 13 (c) of Regulation No 3 of the Council concerning social security for migrant workers and Article 14 (1) (c) (i) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Communities must be interpreted as meaning that a national provision of a Member State is incompatible with those two provisions inasmuch as it seeks to exclude a worker from legislation which according to the regulation is declared to be applicable to him on the ground that he is also insured in another Member State.
      (
            1
         )	Translated from the Dutch.