CELEX: 62018CC0095
Language: en
Date: 2019-03-26 00:00:00
Title: Opinion of Advocate General Sharpston delivered on 26 March 2019.#Sociale Verzekeringsbank v F. van den Berg and Others.#Requests for a preliminary ruling from the Hoge Raad der Nederlanden.#References for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Article 13 — Applicable law — Resident of a Member State falling within the scope of Regulation (EEC) No 1408/71 — Allowances under the old-age pension or child benefit schemes — Member State of residence and Member State of employment — Refusal.#Joined Cases C-95/18 and C-96/18.

OPINION OF ADVOCATE GENERAL
      SHARPSTON
      delivered on 26 March 2019 (
            1
         )
      
         Joined Cases C‑95/18 and C‑96/18
      
      Sociale Verzekeringsbank
      Other parties:
      F. van den Berg,
      H.D. Giesen (C‑95/18),
      C.E. Franzen (C‑96/18)
      
         (Requests for a preliminary rulingfrom the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))
      
      (Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Article 13(2) — Minor occupational activities not exceeding a certain threshold in terms of hours or income in a Member State other than the Member State of residence — Applicable legislation — Refusal to grant family allowances and reduction of old-age pension by the Member State of residence — Restriction on the free movement of workers — Article 17 — Agreement between two Member States providing, in the interests of certain categories of person or of certain persons, an exception to the provisions of Article 13)
      
               1. 
            
            
               In these requests for a preliminary ruling, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) asks the Court to determine whether, in the particular circumstances of the main proceedings, the Member States no longer have merely the option, (
                     2
                  ) but instead possibly the obligation, despite the principle of a single applicable legislation laid down by Article 13 of Regulation (EEC) No 1408/71 (
                     3
                  ) and, as Member States of residence, to grant social benefits to a migrant worker subject to the legislation of the Member State of employment.
            
         
         I. The legal framework, the disputes in the main proceedings and the questions referred for a preliminary ruling
      
      
               2.
            
            
               These requests for a preliminary ruling constitute a rather unusual situation. Following an initial judgment, (
                     4
                  ) the Court is being asked to re-examine one of the legal questions raised in that judgment.
            
         
               3.
            
            
               It is therefore not necessary, in this Opinion, to reproduce the legal framework, the procedure or the facts of the disputes in the main proceedings, which were set out both in the Opinion of Advocate General Szpunar (
                     5
                  ) and in the Court’s judgment. (
                     6
                  )
            
         
               4.
            
            
               On the other hand, so that the issues in these requests may be clear, it is appropriate to recall the interpretation given by the Court in that judgment and to present the subsequent steps taken in the main proceedings and also the grounds for the present requests for a preliminary ruling.
            
         
               5.
            
            
               In the case which gave rise to the judgment in Franzen and Others, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands) had referred three questions to the Court for a preliminary ruling.
            
         
               6.
            
            
               In answer to the first question, the Court considered that Article 13(2)(a) of Regulation No 1408/71 should be interpreted as meaning that a resident of a Member State who works for several days per month on the basis of an on-call contract in the territory of another Member State is subject to the legislation of the Member State of employment both on the days on which he works as an employee and on the days on which he does not.
            
         
               7.
            
            
               In answer to the second question, the Court stated that, in circumstances such as those in the main proceedings, Article 13(2)(a) of Regulation No 1408/71 did not preclude a migrant worker, who is subject to the legislation of the Member State of employment, from receiving, by virtue of national legislation of the Member State of residence, an old-age pension and family allowances from the latter State.
            
         
               8.
            
            
               Finally, in view of the answer given to the second question and the fact that the referring court intended, on the basis of a ‘hardship’ clause in the relevant national legislation, (
                     7
                  ) to disregard the national provision excluding Mr F. van den Berg, Mr H.D. Giesen and Ms C.E. Franzen (
                     8
                  ) from the Netherlands social security scheme if the answer to the second question was in the negative, the Court considered that there was no need to answer the third question.
            
         
               9.
            
            
               The Centrale Raad van Beroep (Higher Social Security and Civil Service Court) subsequently delivered, on 6 June 2016, two judgments in which it held, in the light of the interpretation provided by the Court, that an exception to the principle of a single applicable legislation in social security matters (
                     9
                  ) could be accepted. It therefore applied the hardship clause and upheld the applications of the parties to the main proceedings.
            
         
               10.
            
            
               The SVB (
                     10
                  ) lodged appeals on a point of law against those judgments before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the referring court in the present case, on the ground that the hardship clause does not permit a court to disapply Article 6a, introductory sentence and (b) of the AKW and the AOW.
            
         
               11.
            
            
               The referring court considers that it is unable, in the light of Franzen and Others, to determine, without having reasonable doubts, whether EU law means, in the circumstances of the present case, that those provisions should nevertheless not be applied.
            
         
               12.
            
            
               The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) therefore decided to stay the proceedings in both cases and to refer the following questions to the Court of Justice for a preliminary ruling:
               In van den Berg and Giesen (C-95/18):
               
                        ‘(1)
                     
                     
                        
                                 (a)
                              
                              
                                 Must Articles 45 and 48 TFEU be interpreted as meaning that, in cases such as those at issue here, those provisions preclude a national rule such as Article 6a, introductory sentence and (b), of the AOW? That rule means that a resident of the Netherlands is not insured for purposes of the social security scheme of that State of residence if that resident works in another Member State and is subject to the social security legislation of the State of employment on the basis of Article 13 of Regulation No 1408/71. The present cases are characterised by the fact that, on the basis of the legislation of the State of employment, the persons concerned do not qualify for an old-age pension because of the limited scope of their work there.
                              
                           
                  
                        (1)
                     
                     
                        
                                 (b)
                              
                              
                                 For the purpose of the answer to Question 1(a), is it significant that, for a resident of a State of residence which, under Article 13 of Regulation No 1408/71 is not the competent State, there is no obligation to pay contributions under the social security schemes of that State of residence? For the periods during which that resident works in another Member State, he comes exclusively under the social security system of the State of employment by virtue of [Article 13], and in such a case Netherlands national legislation does not provide for an obligation to pay contributions either.
                              
                           
                  
                        (2)
                     
                     
                        For the purpose of the answer to Question 1, is it significant that the possibility existed for the parties concerned to take out voluntary insurance under the AOW, or that the possibility existed for them to request the SVB to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?
                     
                  
                        (3)
                     
                     
                        Does Article 13 of Regulation No 1408/71 preclude someone such as Mr Giesen’s wife, who, prior to 1 January 1989, on the basis solely of the national legislation in her country of residence, the Netherlands, was insured under the AOW, from acquiring an entitlement to old-age benefits on the basis of that insurance, in relation to periods during which, pursuant to that provision of [Regulation No 1408/71], she was subject, by reason of work carried out in another Member State, to the legislation of that State of employment? Or must entitlement to a benefit under the AOW be regarded as an entitlement to a benefit which, under national legislation, is not subject to conditions relating to paid employment or to insurance within the meaning of the Bosmann judgment, with the result that the line of reasoning followed in that judgment can be applied in her case?’
                     
                  In Franzen (C‑96/18):
               
                        ‘(1)
                     
                     
                        Must Articles 45 and 48 TFEU be interpreted as meaning that, in a case such as that at issue here, those provisions preclude a national rule such as Article 6a, introductory sentence and (b) of the AKW? That rule means that a resident of the Netherlands is not insured for purposes of the social security scheme of that State of residence if that resident works in another Member State and is subject to the social security legislation of the State of employment on the basis of Article 13 of Regulation No 1408/71. The present case is characterised by the fact that, on the basis of the legislation of the State of employment, the interested party does not qualify for child benefit because of the limited scope of the work there.
                     
                  
                        (2)
                     
                     
                        For the purposes of the answer to Question 1, is it significant that the possibility existed for the interested party to request the SVB to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?’
                     
                  
         
               13.
            
            
               Written observations were lodged by Mr van den Berg, the SVB, the Czech, Netherlands and Swedish Governments and by the European Commission. With the exception of the Czech Government, those parties and Ms Franzen appeared before the Court at the hearing on 23 January 2019 and presented oral argument.
            
         
         II. Analysis
      
      
         
            A.
          
            Admissibility of the request for a preliminary ruling in van den Berg and Giesen (C‑95/18)
         
      
      
               14.
            
            
               Mr van den Berg maintains that the request for a preliminary ruling in van den Berg and Giesen (C‑95/18) is inadmissible. Since an appeal on a point of law cannot be brought before the referring court in cases concerning Article 6a of the AOW, it should not have examined the merits of the case and lacked jurisdiction to refer questions to the Court of Justice for a preliminary ruling.
            
         
               15.
            
            
               According to settled case-law, it is not for the Court to determine whether the decision whereby the matter is brought before it was taken in accordance with the rules of national law governing the organisation of the court and their procedure. (
                     11
                  ) Accordingly, I consider that that argument should be rejected and that the request for a preliminary ruling in van den Berg and Giesen (C‑95/18) is admissible.
            
         
         
            B.
          
            The first and second questions in van den Berg and Giesen (C‑95/18) and the questions in Franzen (C‑96/18)
         
      
      
               16.
            
            
               By the first and second questions in van den Berg and Giesen (C‑95/18) and by the two questions in Franzen (C‑96/18), which I propose to examine together, the referring court asks, in essence, whether Articles 45 and 48 TFEU should be interpreted as precluding national legislation of a Member State under which a migrant worker residing in that Member State, who is subject to the social security legislation of the Member State of employment for the periods in question on the basis of Article 13 of Regulation No 1408/71, is not insured for the purposes of social security and is therefore not entitled to an old-age pension or to family allowances, even though the law of the Member State of employment does not confer entitlement to an old-age pension or family allowances in respect of those periods. The referring court also asks the Court whether the options of taking out voluntary insurance under the AOW or requesting an agreement within the meaning of Article 17 of Regulation No 1408/71 are relevant in that regard.
            
         
               17.
            
            
               In order to reply to those questions, several preliminary observations should be made.
            
         
               18.
            
            
               First, as regards the circumstances and the situation of the parties to the main proceedings, I would first point out that, owing to the minor nature of their occupational activities, which did not exceed a certain threshold in terms of hours or income, the parties to the main proceedings were compulsorily affiliated only to the Unfallversicherung (German statutory occupational accident insurance scheme), which arguably protects the employer more than the employee, and did not have access to any other social security scheme in that Member State during the periods in question. It subsequently emerged from the discussions at the hearing that the parties to the main proceedings were encouraged by the Netherlands authorities to accept employment in Germany, despite the lack of social protection caused by the nature of that employment, rather than remaining unemployed in the Netherlands. It was also pointed out at the hearing that, if the parties to the main proceedings had remained in the Netherlands without carrying on any occupational activity, they would have been affiliated to the social security system of that Member State and would have received family benefits or contributed to the pension scheme, the contributions being covered by the State itself. Finally, Ms Franzen completely lost the benefit of family allowances for her daughter whom she was bringing up alone; whilst the old-age pension or partner’s allowance of Mr van den Berg and Mr Giesen were reduced by 10% and 16% respectively, which is unquestionably a significant reduction. (
                     12
                  )
            
         
               19.
            
            
               Secondly, as regards the legal context of the present requests for a preliminary ruling, the Netherlands Government has confirmed that the Netherlands exclusion clauses, under which a person who is subject to the legislation of another State by virtue of a treaty or a decision of an organisation of public international law is not regarded as an insured person implement Article 13 of Regulation No 1408/71.
            
         
               20.
            
            
               In that regard, I recall that the objective of the mechanism for coordinating social security schemes provided for by that regulation, as stated in the second and fourth recitals, is to ensure free movement of employed and self-employed persons within the European Union, while respecting the special characteristics of national social security legislation. (
                     13
                  ) Consequently, the fundamental principles of that regulation make it possible to attain the objective of protecting workers without however seeking harmonisation in the field of social security. (
                     14
                  )
            
         
               21.
            
            
               In that context, in accordance with the principle of a single applicable legislation which is expressed, in particular, in Article 13(1) of Regulation No 1408/71, a worker to whom that regulation is applicable shall be subject to the legislation of a single Member State only. (
                     15
                  )
            
         
               22.
            
            
               Moreover, Article 13(2)(a) of the regulation, under which a person employed in the territory of one Member State is subject to the legislation of that State, even if he resides in the territory of another Member State, provides for the application of the lex loci laboris.
            
         
               23.
            
            
               The principle of a single applicable legislation, which was formally introduced by Regulation No 1408/71, (
                     16
                  ) is a rule of conflict of laws. Like the other conflict rules of Title II of that regulation, it aims to avoid conflicts of laws which may otherwise constitute barriers to freedom of movement.
            
         
               24.
            
            
               Specifically, the aim of the principle of a single applicable legislation is to prevent the application of more than one national legislation during a given period of work and the complications which may result from that situation, (
                     17
                  ) and to ‘ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them’. (
                     18
                  )
            
         
               25.
            
            
               The coordination resulting from Regulation No 1408/71 and, in particular, from Article 13 thereof is also based on the idea that, despite differences between the social protection schemes, the migrant worker will have, under each of those legislations, a relatively equivalent overall protection covering more or less all the risks covered by that regulation. (
                     19
                  )
            
         
               26.
            
            
               It is apparent from the case-law that the scope of the principle of a single applicable legislation is not as rigid as the Court’s first judgments gave to understand, in particular for the ‘non-competent’ Member State, that is to say the Member State whose legislation is not applicable.
            
         
               27.
            
            
               It is true that, initially, the Court considered that the effect of determining that a given Member State’s legislation was the legislation applicable to a worker was that only the legislation of that Member State was applicable to him, thus preventing a non-competent Member State from granting him allowances. (
                     20
                  ) Consequently, it also considered that Article 13 of Regulation No 1408/71 precluded the non-competent Member State from requiring payment of contributions based on the remuneration received by a worker in respect of work performed in another Member State and therefore subject to the social legislation of that State. (
                     21
                  )
            
         
               28.
            
            
               However, the Court has subsequently tempered that position somewhat.
            
         
               29.
            
            
               Thus, in Bosmann, although it considered that EU law does not require the non-competent Member State under Regulation No 1408/71 to grant benefits, the Court nevertheless added that Article 13(2)(a) of that regulation does not preclude a migrant worker who is subject to the social security scheme of the Member State of employment from receiving, pursuant to the national legislation of the Member State of residence, child benefit in the latter State. The Court reiterated that position in von Chamier-Glisczinski, (
                     22
                  ) in which it also considered that, in view of the disparities existing between the schemes and legislation of the Member States in the field of social security, the exercise of freedom of movement may be more or less advantageous or disadvantageous in respect of social protection and that the provisions of EU law cannot guarantee to an insured person that a move to another Member State will be neutral in that regard. Consequently, the Court stated that a social security scheme cannot be considered to be the cause of a discrimination or a disadvantage for the sole reason that it has unfavourable consequences when it is applied, in accordance with the coordination mechanisms, in combination with the scheme of another Member State. (
                     23
                  )
            
         
               30.
            
            
               Finally, Hudzinski and Wawrzyniak (
                     24
                  ) extended the options resulting from Bosmann for the non-competent Member State, since the circumstances of Mr Waldemar Hudzinski and Mr Jaroslaw Wawrzyniak were very different from that of Ms Brigitte Bosmann. It is apparent from that judgment that the fact that the workers in question had not lost rights to social security benefits or had those benefits reduced in the competent Member State (there, the Republic of Poland) because they exercised the right to freedom of movement cannot on its own preclude a non-competent Member State from granting social benefits. It is also apparent from that judgment that residence is not the only factor establishing connection with the non-competent State, but that other connecting factors, such as liability for income tax, may be regarded as being sufficiently close to justify the grant of the benefit.
            
         
               31.
            
            
               Since the Court did not recognise that the non-competent Member State was under any obligation to grant social benefits, it is clear that in those judgments the principle of a single applicable legislation was not called into question. However, an analysis of those judgments and, in particular, of Hudzinski and Wawrzyniak, (
                     25
                  ) shows, apart from the nuances produced by the factual differences, that the Court makes application of Article 13 of Regulation No 1408/71 conditional on observance of the principle of proportionality. (
                     26
                  )
            
         
               32.
            
            
               It is in the light of these considerations that the questions from the referring court should be answered.
            
         
               33.
            
            
               In the present case, the parties to the main proceedings, Netherlands nationals residing in the Netherlands, have exercised their right to freedom of movement under Article 45 TFEU to go and work in Germany.
            
         
               34.
            
            
               It is clear from the settled case-law of the Court that all the provisions of the Treaty on freedom of movement for persons ‘are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the EU, and preclude measures which might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin’. Thus, Article 45 TFEU precludes any national measure, of the host Member State or of the Member State of origin, which is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedom guaranteed by that article. (
                     27
                  )
            
         
               35.
            
            
               As the governments which have submitted observations before the Court have pointed out, it also follows from the case-law that primary EU law cannot guarantee to an insured person that moving to another Member State will be neutral in terms of social security. Accordingly, the Court has already acknowledged that the application, possibly as a result of the provisions of Regulation No 1408/71, of national legislation that is less favourable as regards social security benefits may in principle be compatible with the requirements of primary EU law on freedom of movement for persons. (
                     28
                  )
            
         
               36.
            
            
               The Court’s approach is based on the fact that Article 48 TFEU provides for coordination of the legislations of the Member States, not their harmonisation. It follows that the substantive and procedural differences between the social security schemes of individual Member States, and hence in the rights of the persons affiliated to them, are unaffected by that provision. Each Member State thus retains the power to determine in its legislation, in compliance with EU law, the conditions for access to benefits under a social security scheme.
            
         
               37.
            
            
               That said, when determining those conditions the Member States are constrained by, inter alia, the principle of proportionality in the application of national exclusion measures. Thus, that principle helps to strike the right balance between the principle of a single applicable legislation enshrined in Regulation No 1408/71 and the protection to be afforded to migrant workers, through the option, as already recognised in the Court’s case-law, for the non-competent State to grant benefits.
            
         
               38.
            
            
               Here I note that, in the particular circumstances of these cases, the application of the exclusion clauses does not merely create a disadvantage for the parties to the main proceedings. It deprives them of cover in the Member State of residence simply because they have worked in another Member State. At the same time, they are excluded, in the Member State of employment, from any social protection during the periods in question. (
                     29
                  ) The parties to the main proceedings are therefore treated not only more unfavourably than a worker who has spent his entire career in the Netherlands, but also in a way which goes beyond the limits permitted under the principle of proportionality.
            
         
               39.
            
            
               Applying the exclusion clauses provided for by the Netherlands legislation implementing the principle of a single applicable legislation creates consequences which are clearly disproportionate and (obviously) has the effect of hindering or rendering less attractive the exercise by EU nationals residing in the Netherlands of the freedom of movement of workers. That situation is not merely a disadvantage resulting from a lack of harmonisation of social security legislations within the European Union. It is the direct result of applying the Netherlands exclusion clauses.
            
         
               40.
            
            
               Furthermore, such a restriction on the free movement of workers does not meet all the requirements of that traditional principle of EU law. (
                     30
                  )
            
         
               41.
            
            
               In that regard, the Netherlands and Swedish Governments maintained, in particular at the hearing, that the purpose of the rules on conflict and division of competencies established by Regulation No 1408/71 is, as well as protecting workers, to ensure a fair and equitable distribution of the financial burden between Member States by aligning the funding of social security systems and the relevant expenditure. If a Member State is the Member State competent, under that regulation, for the social security cover of a worker, the contributions and benefits must be financed and paid in accordance with the law of that State.
            
         
               42.
            
            
               I do not question the legitimacy of that objective, particularly since the principles of Regulation No 1408/71 and the coordination which it establishes also guarantee the integrity of the national social security schemes and, in particular, their differences both in terms of cover and funding. (
                     31
                  ) However, I consider that, in any event, the Netherlands legislation goes beyond what is necessary to attain it.
            
         
               43.
            
            
               It is true that, in accordance with the case-law cited in point 27 of this Opinion, the non-competent Member State under Regulation No 1408/71 cannot impose contributions and that the parties to the main proceedings did not therefore contribute to the Netherlands social insurance scheme for the periods during which they were working in Germany.
            
         
               44.
            
            
               However, the Kingdom of the Netherlands could have provided for alternatives to applying the exclusion clauses: measures tailored to the situation of the parties to the main proceedings enabling them to be affiliated to the Netherlands social protection system against payment of contributions.
            
         
               45.
            
            
               The Court has indeed established that non-competent States cannot impose an obligation to pay contributions. But in my view that limitation does not preclude them proposing to grant benefits in return for a voluntary contribution, if such an arrangement essentially corresponds to the conditions for granting benefits to other persons covered by the national legislation. In that regard, I recall that if they had remained unemployed in the Netherlands, the persons concerned would have been affiliated to the Netherlands social security system at the expense of that Member State. (
                     32
                  )
            
         
               46.
            
            
               Moreover, the Kingdom of the Netherlands could have initiated and negotiated an agreement, within the meaning of Article 17 of Regulation No 1408/71, (
                     33
                  ) with the Federal Republic of Germany. Such an agreement could have provided for the parties to the main proceedings to be affiliated to the Netherlands social security system, for the payment of contributions adjusted to the particularly low level of income of the parties to the main proceedings and for an arrangement between the Member States regarding the proportion of contributions normally paid by the employer.
            
         
               47.
            
            
               Similarly, the possibility of taking out voluntary insurance under the AOW cannot ensure that Article 6a, introductory sentence and (b) of that law is compatible with EU law if that possibility is not tailored to take into account the specific situation of workers such as Mr F. van den Berg and Mr H.D. Giesen, and, in particular, their low incomes.
            
         
               48.
            
            
               In those circumstances, the application of the exclusion clauses and the complete ejection of the parties to the main proceedings from the social security system in the Netherlands go beyond what is necessary to ensure the financial balance of the social security system.
            
         
               49.
            
            
               In the light of all those considerations, I consider that Articles 45 and 48 TFEU preclude the application of the exclusion clauses contained in Article 6a, introductory sentence and (b) of the AKW and in Article 6a, introductory sentence and (b) of the AOW.
            
         
         
            C.
          
            The third question in van den Berg and Giesen (C‑95/18)
         
      
      
               50.
            
            
               By the third question in van den Berg and Giesen (C‑95/18), the referring court asks the Court of Justice, in essence, whether the right to a benefit under the AOW is to be regarded as a right to benefits which, under national legislation, is not subject to conditions of employment or insurance.
            
         
               51.
            
            
               By this question, which concerns the situation of Mr Giesen’s wife, (
                     34
                  ) the referring court is enquiring as to the scope of Bosmann. In particular, it seeks to ascertain whether, in that judgment and in Franzen and Others, the Court has made the option for the Member State of residence to grant the benefits at issue conditional on the fact that, under the legislation of that State, those benefits were not subject to conditions of employment or insurance.
            
         
               52.
            
            
               Although it is for the referring court to determine, for the period in question, the conditions for the grant of old-age pensions, it is naturally for the Court, under its powers in preliminary ruling proceedings, to define the scope and interpretation of the judgments in Bosmann and Franzen and Others.
            
         
               53.
            
            
               It is true that in Bosmann the Court attached great importance to the specific circumstances of that case. Accordingly, it stated, in paragraph 28 of the judgment, that, subject to the verifications to be made by the referring court, under German legislation, Ms Bosmann’s residence in Germany sufficed to entitle her to child benefit. The Court also referred, in paragraph 32 of that judgment, to the fact that the right to child benefit was not subject to conditions of insurance or employment. Nevertheless, the fact that the Court took account of that fact as a specific circumstance of that case does not mean, in my view, that it made the possibility of granting those allowances subject to such conditions.
            
         
               54.
            
            
               That analysis is, in my view, supported by Hudzinski and Wawrzyniak, (
                     35
                  ) in which the fact that the allowance in question was not subject to conditions of employment or insurance was not a condition of the interpretation given by the Court. Nor, to my mind, has it been altered by Franzen and Others.
            
         
               55.
            
            
               First, the circumstances identified by the Court in paragraph 64 of Franzen and Others are the extension of the analysis started in the previous paragraph, in which the Court stated that it appeared that the substantive conditions for granting allowances under the Netherlands legislation were satisfied and that the granting of those allowances would not lead to overlapping benefits.
            
         
               56.
            
            
               Second, it follows implicitly but necessarily from the conclusion reached by the Court in paragraph 65 of Franzen and Others (according to which, as in Bosmann, Article 13 of Regulation No 1408/71 does not preclude the grant of such allowances by the Member State of residence) that the exception to the principle of a single applicable legislation recognised in the latter judgment is not conditional on the fact that the Member State of residence does not make the grant of entitlement to social benefits subject to conditions of employment or insurance.
            
         
               57.
            
            
               However, it is apparent from those judgments that the Member State of residence has that option only if the grant of the allowance in question stems from the legislation of that State and the worker satisfies the necessary conditions for that purpose, provided that those conditions are proportionate to that worker’s situation and are not stricter than the conditions applying to other recipients of that benefit.
            
         
               58.
            
            
               In that regard, I note that, in paragraph 64 of Franzen and Others, the Court pointed out that it had been maintained at the hearing in that case that, in the Netherlands, residence sufficed for affiliation to the statutory old-age pension scheme. Furthermore, paragraphs 63 and 64 of that judgment indicate that the Court found that affiliation was a condition for the grant of old-age benefits. However, the Netherlands Government stated at the hearing in the present cases that, although residence indeed sufficed for affiliation to the statutory old-age pension scheme in the Netherlands, payment of contributions was necessary for the grant of old-age benefits. It is for the referring court to identify, for the period in question, the conditions for the grant of old-age benefits.
            
         
               59.
            
            
               In that context, the referring court must take into account the fact, highlighted in point 18 of this Opinion, that the State itself apparently pays the contributions to the social security system for persons residing in the Netherlands who are unemployed.
            
         
               60.
            
            
               I therefore consider that Article 13 of Regulation No 1408/71 does not preclude a person who was considered to be an insured person in his Member State of residence, under national provisions, being granted a right to old-age benefits for a period during which that person was working in another Member State. It is for the referring court to verify that the grant of the benefit in question is based on the legislation of that Member State and that the worker fulfils the necessary conditions.
            
         
         III. Conclusion
      
      
               61.
            
            
               In the light of the foregoing considerations, I propose that the Court reply to the questions referred for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:
               
                        (1)
                     
                     
                        Articles 45 and 48 TFEU preclude the application of provisions of national law of a Member State under which a migrant worker residing in that Member State, who is subject — on the basis of Article 13 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1997, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 — to the social security legislation of the Member State of employment, is not insured for the purposes of social security and is therefore not entitled to an old-age pension or to family allowances, even though the applicable law of the Member State of employment does not give him any right to social benefits other than protection, during his periods of employment, against accidents at work.
                     
                  
                        (2)
                     
                     
                        Article 13 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, does not preclude a person who was considered to be an insured person in his Member State of residence, under national provisions, being granted a right to old-age benefits for a period during which that person was working in another Member State. It is for the referring court to verify that the grant of the benefit in question is based on the legislation of that Member State and that the worker fulfils the necessary conditions.
                     
                  
         (
            1
         )	Original language: French.
      (
            2
         )	An option recognised since the judgment of 20 May 2008, Bosmann (C‑352/06, Bosmann, EU:C:2008:290). See point 29 of this Opinion.
      (
            3
         )	Regulation of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition, Series I 1971(II), p. 416), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) (‘Regulation No 1408/71’).
      (
            4
         )	Judgment of 23 April 2015, Franzen and Others (C‑382/13, ‘Franzen and Others, EU:C:2015:261).
      (
            5
         )	Opinion of Advocate General Szpunar in Franzen and Others (C‑382/13, EU:C:2014:2190). The legal framework is set out in points 3 to 24 of that Opinion, whilst the facts in the disputes in the main proceedings and the questions referred for a preliminary ruling are narrated in points 25 to 42 of that Opinion.
      (
            6
         )	The legal framework is set out in paragraphs 3 to 22 of Franzen and Others; the disputes in the main proceedings and the questions referred for a preliminary ruling are described in paragraphs 23 to 38 of that judgment.
      (
            7
         )	I recall here that the hardship clause is established by the Besluit uitbreiding en beperking kring verzekerden volksverzekeringen (decrees on the extension or restriction of the category of persons insured in respect of social insurance) of 3 May 1989 (Stb. 1989, No 164; ‘the 1989 BUB’) and of 24 December 1998 (Stb. 1998, No 746; ‘the 1999 BUB’). Those decrees, which are applicable to the persons concerned, empower the Raad van bestuur van de Sociale verzekeringsbank (Management Board of the Social Insurance Bank, Netherlands; ‘the SVB’), within the framework laid down by the 1989 BUB, to derogate in certain cases from the other provisions of that decree in order to remedy an unacceptable degree of unfairness which might arise from the insurance obligation or the exclusion therefrom by virtue of that decree; or within the framework of the 1999 BUB, not to apply articles of that decree or indeed to derogate from them to the extent that their application, in the light of the importance of the extension and reduction of the group of insured persons, would lead to an unacceptable degree of unfairness arising exclusively from the insurance obligation or the exclusion therefrom by virtue of the second decree.
      (
            8
         )	Hereinafter jointly referred to as ‘the parties to the main proceedings’.
      (
            9
         )	I recall here that, under the exclusion clauses provided for by Article 6a, introductory sentence and (b) of the Algemene Kinderbijslagwet (General Law on Child Benefits) of 26 April 1962 (Stb. 1962, No 160; ‘the AKW’), and of the Algemene Ouderdomswet (General Law on Old-Age Pensions) of 31 May 1956 (Stb. 1956, No 281; ‘the AOW’), according to which persons who are subject to the legislation of another Member State by virtue of a treaty or a decision of an organisation of public international law will not be considered to be insured persons, the parties to the main proceedings were not regarded as insured persons in the Netherlands.
      (
            10
         )	See footnote 7 of this Opinion.
      (
            11
         )	See judgment of 13 June 2013, Promociones y Construcciones BJ 200 (C‑125/12, EU:C:2013:392, paragraph 14 and the case-law cited).
      (
            12
         )	It appears from the documents before the Court that, in such a situation, the pension is reduced by 2% for each year during which the worker was not insured in the Netherlands. In the present case, Mr van den Berg’s pension was reduced by 14% taking account of the fact that he had worked in Germany for seven years. By decision of 25 November 2008, his claim against the decision to grant him a reduced old-age pension was declared partly founded and the reduction was set at 10%. In Mr Giesen’s case, the partner’s allowance which he received in respect of his wife was reduced by 16%.
      (
            13
         )	See judgment of 18 July 2006, Nikula (C‑50/05, EU:C:2006:493, paragraph 20 and the case-law cited).
      (
            14
         )	See Kessler, F., ‘Sécurité sociale: Coordination des régimes de base — Champ d’application — Principes généraux’, Répertoire de droit européen, Encyclopédie juridique Dalloz, Dalloz, Paris, January 2016, paragraph 153.
      (
            15
         )	See Franzen and Others (paragraphs 41 and 42).
      (
            16
         )	Council Regulation No 3 on social security for migrant workers (JO 1958 P 30, p. 561) did not introduce that principle as such. However, in the judgment of 9 June 1964, Nonnenmacher (92/63, EU:C:1964:40), the Court considered that the obligation to provide for the compulsory application of a specific legislation constituted the essential element of Article 12 of that regulation.
      (
            17
         )	See judgment of 12 June 1986, Ten Holder (302/84, EU:C:1986:242, paragraph 19).
      (
            18
         )	Judgment of 3 May 1990, Kits van Heijningen (C‑2/89, EU:C:1990:183, paragraph 12), emphasis added.
      (
            19
         )	That explains why the conflict rules are, in principle, indifferent to the protection offered by the national social security schemes and neutral with regard to national legislations.
      (
            20
         )	See judgments of 12 June 1986, Ten Holder (302/84, EU:C:1986:242, paragraphs 19 to 23), and of 10 July 1986, Luijten (60/85, EU:C:1986:307, paragraphs 12 to 16).
      (
            21
         )	See judgment of 5 May 1977, Perenboom (102/76, EU:C:1977:71, paragraphs 10 to 15).
      (
            22
         )	Judgment of 16 July 2009 (C‑208/07, EU:C:2009:455, paragraphs 55 and 56).
      (
            23
         )	See judgment of 16 July 2009, von Chamier-Glisczinski (C‑208/07, EU:C:2009:455, paragraphs 84, 85 and 87).
      (
            24
         )	Judgment of 12 June 2012 (C‑611/10 and C‑612/10, EU:C:2012:339).
      (
            25
         )	Judgment of 12 June 2012 (C‑611/10 and C‑612/10, EU:C:2012:339).
      (
            26
         )	Rennuy, N., ‘The emergence of a parallel system of social security coordination’, Common Market Law Review, Vol. 50, No 5, Kluwer Law International, Alphen-sur-le-Rhin, 2013, pp. 1221 to 1266, in particular p. 1256 et seq.
      (
            27
         )	Judgment of 18 July 2017, Erzberger (C‑566/15, EU:C:2017:562, paragraph 33 and the case-law cited), emphasis added.
      (
            28
         )	See, inter alia, judgments of 16 July 2009, von Chamier-Glisczinski (C‑208/07, EU:C:2009:455, paragraph 85), and of 12 June 2012, Hudzinski and Wawrzyniak (C‑611/10 and C‑612/10, EU:C:2012:339, paragraphs 42 and 43 and the case-law cited).
      (
            29
         )	Apart from the compulsory insurance covering accidents at work during those same well-defined periods. I note, in so far as this point is relevant, that the Court was not seised of the question whether the German legislation was compatible with EU law. It does not therefore have to express an opinion in that regard or take a position regarding the possible social dumping generated by that legislation. With regard to the issue of social dumping within the Union, see Mazuyer, E., Carpano, E., and Chastagnaret, M., La concurrence réglementaire, sociale et fiscale dans l’Union européenne, Larcier, Brussels, 2016, and Defossez, A., Le dumping social dans l’Union européenne, Larcier, Brussels, 2014.
      (
            30
         )	Such a measure may be allowed only if it pursues an objective in the public interest, is appropriate for the purpose of ensuring the attainment of that objective and does not go beyond what is necessary to attain the objective pursued (see, inter alia, judgment of 16 May 2013, Wencel (C‑589/10, EU:C:2013:303, paragraph 70 and the case-law cited)).
      (
            31
         )	On social security models see, inter alia, Omarjee, I., Droit européen de la protection sociale, Bruylant, Brussels, 2018, p. 5 and footnotes 29 and 30; Paolillo, M., and Morsa, M., La sécurité sociale des travailleurs salariés, Larcier, Brussels, 2010, p. 174. See also Pennings, F., ‘Co-ordination of social security on the basis of the State-of-employment principle: Time for an alternative?’, Common Market Law Review, Vol. 42, No 1, Kluwer Law International, Alphen-sur-le-Rhin, 2005, pp. 67 to 89, in particular p. 77. For an overview of the funding systems in the EU Member States, see Omarjee, I., op. cit., p. 6 and footnotes 34 to 38.
      (
            32
         )	See point 18 above.
      (
            33
         )	Since that provision is, in essence, the same as Article 16 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), see, for a commentary, Steinmeyer, H-D., ‘Article 16 Exceptions to Articles 11 to 15’, EU Social Security Law: a Commentary on EU Regulations 883/2004 and 987/2009, Hart Publishing, Oxford, 2015, pp. 188 to 192.
      (
            34
         )	I recall that, during the period between 19 May 1988 and 1 January 1989, Mr Giesen’s wife was insured under the AOW as a resident, since Article 6a, introductory sentence and (b) of the AOW is derived from the wet tot wijziging van een aantal sociale verzekeringswetten strekkend tot verduidelijking van het in die wetten opgenomen begrip verzekerde en de met het verzekerd zijn onlosmakelijk verbonden premieplicht (wet verduidelijking verzekerings- en premieplicht) (Law amending certain laws on social security in order to clarify the concept of ‘insured person’ in these laws and the obligation to contribute which is inseparable from the status of ‘insured person’ (law clarifying the obligations of insurance and contributions) of 29 April 1998 (Stb. 1998, No 267), and is only applicable retroactively from 1 January 1989. During that same period, Ms Giesen worked in Germany and, in accordance with Article 13 of Regulation No 1408/71, she came under the German social security legislation without, however, benefiting from a statutory old-age benefits scheme in that Member State.
      (
            35
         )	Judgment of 12 June 2012 (C-611/10 and C-612/10, EU:C:2012:339).