CELEX: 61994CC0227
Language: en
Date: 1995-07-13
Title: Opinion of Mr Advocate General Lenz delivered on 13 July 1995. # E. Olivieri-Coenen v Bestuur van de Nieuwe Algemene Bedrijfsvereniging. # Reference for a preliminary ruling: Arrondissementsrechtbank Amsterdam - Netherlands. # Social security - Incapacity for work - Contract of employment subject ot private law - Employment subject to a scheme for civil servants - Article 4 (4) of Regulation (EEC) Nº 1408/71 - Point 4 (a) of the section on the Netherlands contained in Annex V to Regulation (EEC) Nº 1408/71. # Case C-227/94.

OPINION OF ADVOCATE GENERAL
      LENZ
      delivered on 13 July 1995 (
            *1
         )
      A — Introduction
      
               1.
            
            
               The present case concerns the calculation of an invalidity pension under Dutch law. Mrs Olivieri-Coenen, the plaintiff in the main proceedings, lived in the Netherlands from when she was born in 1927 until 1959. She worked there from 1 September 1946 to 29 January 1959 as a teacher in a private school. Her post was based on a civil-law contract of employment. As the representative of the defendant in the main proceedings explained at the hearing before the Court of Justice, Mrs Olivieri-Coenen was originally a Dutch national. After she married an Italian national, she acquired Italian nationality and settled in Italy in 1959. She worked there with her husband in a hotel business which belonged to them. She was insured in Italy from March 1960 to July 1981.
            
         
               2.
            
            
               In 1979 she gave up her occupation because of health problems. The responsible Italian insurance institution subsequently granted her an Italian invalidity pension with effect from 1 February 1982. In addition she submitted a claim for pro rata Dutch benefits for unfitness for work. By way of explanation it should be mentioned that, in cases of the present kind, according to the relevant provisions of Community law the total amount of the invalidity pension is determined first and then the proportion attributable to the respective Member States concerned is calculated.
            
         
               3.
            
            
               On 13 March 1991 the Dutch insurance institution responsible, the Nieuwe Algemene Bedrijfsvereniging (‘defendant in the main proceedings’), informed Mrs Olivieri-Coenen that she had been granted a proportionate benefit for unfitness for work under the Wet op de arbeidsongeschiktheidsverzekering (‘WAO’) with effect from 1 February 1982. However, only the period of employment before 1 September 1947 was taken into account for the purpose of calculating the benefit.
            
         
               4.
            
            
               To understand the reason for this, it is necessary to glance at the relevant provisions of Dutch social insurance law. In the Netherlands protection against the financial consequences of unfitness for work is regulated in two laws — the abovementioned WAO, which came into force on 1 July 1967, and the Algemene Arbeidsongeschiktheidswet (‘AAW’)- The amount of the benefits granted on the basis of the WAO or the AAW does not depend on the periods of insurance completed. On the other hand, civil servants and persons treated as such are insured against unfitness for work under the Algemene Burgerlijke Pensioenwet (‘ABPW’). Of the two laws mentioned at the beginning, only the WAO is relevant in the present case, so that it is unnecessary to examine the AAW and the relationship between the two laws in greater detail. (
                     1
                  )
               The ABPW came into force on 1 January 1966. Before that date civil servants and persons treated as such were covered by the Pensioenwet 1922, which was repealed by the ABPW. At the same time transitional arrangements were made for persons with an expectancy of an invalidity pension under the Pensioenwet 1922. Under these provisions, the expectancy continued for five years, until 1 January 1971. If a person became unfit for work after that date, he or she could not claim an invalidity pension on that basis.
            
         
               5.
            
            
               From 1 September 1947 Mrs Olivieri-Coenen was covered by the Pensioenwet 1922. Therefore she had an expectancy of an invalidity pension under that law. However, the expectancy lapsed on the expiry of the transitional period laid down by the ABPW.
            
         
               6.
            
            
               The defendant in the main proceedings based the calculation of the pro rata pension payable to Mrs Olivieri-Coenen on Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to selfemployed persons and to members of their families moving within the Community, (
                     2
                  ) in the version applying on 21 February 1982, the date from which Mrs Olivieri-Coenen was entitled to an Italian invalidity pension. It is unnecessary to consider in detail the provisions of Title III (‘Special Provisions relating to the Various Categories of Benefits’) of Regulation No 1408/71 which must be applied for this purpose, because the parties to the present proceedings agree on this point and these provisions are not relevant for answering the question referred. Therefore it is sufficient to observe that thepro rata benefit for unfitness for work payable by the defendant in the main proceedings to Mrs Olivieri-Coenen was to be calculated on the basis of Article 46(2), which applies by analogy, of Regulation No 1408/71.
            
         
               7.
            
            
               The following provision relating to Article 46(2) occurs in Annex V of the version of the Regulation in force at that time, in paragraph 4(a) of the section applying to the Netherlands:
               ‘For the application of Article 46(2) of the Regulation, periods of employment and periods treated as periods of employment completed before 1 July 1967 in the Netherlands shall be deemed to be periods of insurance completed in accordance with the provisions of the Netherlands law on insurance against unfitness for work.’
            
         
               8.
            
            
               Consequently, for calculating the pro rata Netherlands pension the defendant in the main proceedings took into account the period of Mrs Olivieri-Coenen's employment before 1 September 1947. However, it refused to count the period of employment from 1 September 1947 to 29 January 1959, during which Mrs Olivieri-Coenen was subject to the Pensioenwet 1922. The reason given by the defendant was that this law covered civil servants and persons treated as such. However, Article 4(4) of Regulation No 1408/71 provides that the Regulation does not apply to ‘special schemes for civil servants and persons treated as such’.
            
         
               9.
            
            
               Mrs Olivieri-Coenen brought proceedings challenging this decision. She contends that it is based on an incorrect interpretation of Regulation No 1408/71. Therefore the Arrondissementsrechtbank Amsterdam has referred the following question for a preliminary ruling:
               ‘Is point 4(a) (of the section on the Netherlands) of Annex V to Regulation No 1408/71, in the version in force on 1 February 1982, to be interpreted as meaning that the periods of employment referred to therein may include periods during which a person was employed as a teacher under a contract of employment with a private school even if during that period she was insured under a special scheme for civil servants and persons treated as such?’
            
         B — Analysis
      
               10.
            
            
               Before turning to the question itself, I think it would be appropriate briefly to examine the question of which version of the provision concerned should be used as a basis for interpretation. It is common ground that this is the version in force on 1 February 1982. When Regulation No 1408/71 was adopted, paragraph 4(a) was in section F of Annex V of the Regulation. The accession of Denmark, Ireland and the United Kingdom meant that further sections were added to Annex V for the new Member States. Consequently section F became section H, (
                     3
                  ) without any changes being made to the substance of the provision. A similar adjustment took place when Greece joined the Communities. The result of this was that section H became section /. (
                     4
                  ) As this was the version in force on 1 February 1982, I shall take it as the basis for my observations. (
                     5
                  )
               For the sake of completeness only, I would point out that the later amendments to Regulation No 1408/71 are not material to the present case. This applies in particular to Council Regulation (EEC) No 1390/81 of 12 May 1981, which resulted in Annex V becoming Annex VI and also altered the wording of section I. (
                     6
                  ) The Commission has correctly pointed out in its observations that this Regulation came into force only on 1 July 1982, i. e. after the period in question here. (
                     7
                  )
            
         
               11.
            
            
               The question arising in the present case is whether the period from 1 September 1947 to 29 January 1959, during which Mrs Olivieri-Coenen was working as a teacher in a Dutch private school and was at the same time subject to the Pensioenwet 1922, may be regarded as a period of employment or a period treated as such within the meaning of section I(4)(a) of Annex V of Regulation No 1408/71 in the version in force on 1 February 1982.
            
         
               12.
            
            
               I share the Commission's view that this question must be answered in the affirmative. Article l(s) of Regulation No 1408/71 (
                     8
                  ) states that ‘periods of employment’means ‘periods defined or recognized as such by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to insurance periods’. This definition must be used as the basis for interpreting the provision to be examined here. (
                     9
                  ) Consequently the question is whether under Dutch law the activity of the plaintiff in the main proceedings must be regarded as a ‘period of employment’ or as a ‘period treated as such’. This seems to me doubtful. The defendant in the main proceedings itself pointed out in its observations that, under Dutch law a person employed on the basis of a contract of employment must be regarded as an employee. In my opinion, therefore, the period during which such a person works must be considered a period of employment (or a period treated as such) within the meaning of the provision under examination here.
            
         
               13.
            
            
               This is not altered by the fact that during the period in question Mrs Olivieri-Coenen was subject to the Pensioenwet 1922. It is true that this law, like the ABPW, is a ‘special scheme for civil servants and persons treated as such’, to which, pursuant to Article 4(4) of Regulation No 1408/71, that Regulation does not apply. However, it does not follow that the period in question should not be regarded as a period of employment or period treated as such within the meaning of the provision under examination here.
            
         
               14.
            
            
               The defendant in the main proceedings seeks support in the Court's judgment in the Lohmann (
                     10
                  ) case. That judgment concerned a Dutch national who had previously been a civil servant and was now drawing an invalidity pension under the ABPW. After some time he moved to Belgium. His daughter continued to live in the Netherlands and he claimed an additional child allowance for her under the law of that State, which however was refused. In the proceedings which Mr Lohmann then brought before the Dutch courts the question arose of whether the plaintiff could found his claim on Article 77(2)(a) of Regulation No 1408/71, which provides that, in the cases which it covers, a pensioner who draws a pension under the legislation of only one Member State can claim family allowances in accordance with the legislation of that State. Therefore this provision could have been to the plaintiff's advantage only if the invalidity pension drawn by him under the ABPW had been a pension within the meaning of Article 77(2)(a). The Court answered this question in the negative. It observed that special schemes for civil servants and persons treated as such were excluded by Article 4(4) of Regulation No 1408/71 from the scope of application of the Regulation. The Court concluded that a pension granted on the basis of such a special scheme cannot be a pension within the meaning of Article 77(2)(a). (
                     11
                  ) This is obvious. As Regulation No 1408/71 is not applicable to special schemes for civil servants and persons treated as such, the fact that a person is entitled to benefits under such a scheme cannot as such mean that the Regulation applies to him.
            
         
               15.
            
            
               However, the facts here are not comparable with those on which the judgment in the Lohmann case was based. The present case is not concerned with whether or how the existence of an entitlement on the basis of a special scheme for civil servants or persons treated as such affects the question of the applicability of Regulation 1408/71. It is clear that Mrs Olivieri-Coenen is not entitled to such benefits on the basis of the Pensioenwet 1922 or of the ABPW. The only point in issue is whether a period during which she was subject to the Pensioenwet 1922 may be regarded as a period of employment within the meaning of the provision in question and may therefore be taken into account in calculating the pro rata invalidity pension under Dutch law. An answer in the affirmative by no means conflicts with Article 4(4) of Regulation No 1408/71. It must be mentioned once again that, after the expiry in 1971 of the transitional period laid down by the ABPW, Mrs Olivieri-Coenen had no entitlement whatever on the basis of a special scheme for civil servants and persons treated as such. In the final outcome, her position is exactly the same as if she had at no time been subject to the Pensioenwet 1922. As this is the conclusion which must be reached from the existing provisions, it is unnecessary to justify such conclusion by prior amendment of Article 4(4) by the legislature, which is regarded as necessary by the defendant in the main proceedings.
            
         
               16.
            
            
               However, even assuming that this view could not be reconciled with Article 4(4), the final outcome would, in my view, be the same. According to the Court's case-law, there is no ‘hierarchy’ between the provisions of Regulation No 1408/71 on the one hand and those of Annex VI of the Regulation (formerly Annex V) on the other. All those provisions were adopted pursuant to Article 51 of the EC Treaty and must therefore be interpreted ‘together in the light of the purpose of that article, which is to facilitate the establishment of the greatest possible freedom of movement for migrant workers, a principle which is one of the foundations of the Community’. (
                     12
                  ) Consequently on this ground also Article 4(4) of Regulation No 1408/71 does not preclude this interpretation. Accordingly the question of the relationship between Article 4(4) of the Regulation and Article 48(4) of the EC Treaty is not relevant to the present case. (
                     13
                  )
            
         
               17.
            
            
               As the Commission rightly observes, this interpretation is also fair. As Mrs Olivieri-Coenen's expectancy under the Pensioenwet 1922 lapsed in 1971, a contrary interpretation would mean that no account at all would be taken of the period of employment between September 1947 and January 1959. This would have an adverse effect for her, whereas if that period were taken into account it would not lead to concurrent entitlements. (
                     14
                  )
            
         
               18.
            
            
               Finally, it should be mentioned that, in its observations which are as well founded as they are useful, the defendant in the main proceedings also considers that the opinion put forward here is possible. However, it appears to consider, quite rightly, that the existing doubts should be removed by a judgment of the Court.
            
         C — Conclusions
      
               19.
            
            
               Therefore I propose that the Court should give the following reply to the question referred by the Arrondissementsrechtbank, Amsterdam:
               Section I(4)(a) of Annex V of Regulation No 1408/71, in the version in force on 1 February 1982, must be interpreted as meaning that the periods of employment and periods treated as such within the meaning of that provision which were completed before 1 July 1967 include periods during which a person was employed as a teacher under a contract of employment with a private school even if during that period that person was insured under a special scheme for civil servants or persons treated as such.
            
         (
            *1
         )	Original language: German.
      (
            1
         )	These questions are discussed in the opinion of Advocate General Tesauro in Case C-12/93 Drake [1994] ECR I-4339.
      (
            2
         )	OJ 1971 L 149, p. 2.
      (
            3
         )	See Article 29 of the Act Concerning the Conditions of Accession and the Adjustments to the Treaties (OJ 1972 L 73, pp. 14,  112).
      (
            4
         )	See Article 21 of the Act Concerning the Conditions of Accession of the Hellenic Republic and the Adjustments to the Treaties (OJ 1979 L 291, pp. 17, 101).
      (
            5
         )	The text of this provision is given in paragraph 7 above.
      (
            6
         )	OJ 1981 L 143, p. 1.
      (
            7
         )	See Article 4 of Regulation No 1390/81 and Article 5 of Council Regulation (EEC) No 3795/81 of 8 December 1981 (OJ 1981 L 378, p. 1).
      (
            8
         )	In the version in force on I February 1982.
      (
            9
         )	Whereas the German wording of both provisions refers to ‘Beschāfrigungszeiten’, other language versions use slightly different terms. For example, the Dutch version of Article 1rs) speaks of ‘tijdvakken van arbeid’ and the French version of ‘périodes d'emploi’. However, this does not result in a substantive difference.
      (
            10
         )	Case 129/78 Sociale Verzekeringsbank Amsterdam v Lohmann [1979] ECR 853.
      (
            11
         )	Ibid, (footnote 10), paragraph 6.
      (
            12
         )	Case C-12/93 Drake [1994] ECR I-4337, paragraph 20.
      (
            13
         )	The proceedings now pending in the Vougioukos case (Case C-443/93) will no doubt give the Court an opportunity to examine this question in more depth. Cf. the opinion of Advocate General Ruiz-Jarabo Colomer delivered on 1 June 1995.
      (
            14
         )	It is interesting to note that, as the defendant in the main proceedings explained at the hearing before the Court of Justice, Mrs Olivieri-Coenen would actually have been enmled to a higher invalidity pension if she had remained in the Netherlands (and continued in the same occupation).