A. J. van Pommeren-Bourgondiën v Raad van bestuur van de Sociale verzekeringsbank.
Date: 2005-07-07
19. Mrs van Pommeren-Bourgondiën, who has Netherlands nationality, resides in Belgium but worked in the Netherlands for her entire working life. Since 1997 she has received invalidity benefit under the WAO at the highest rate under the invalidity benefit scheme.
33. The sole purpose of Article 13(2) of Regulation No 1408/71 is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (f) of that provision. It is not intended 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. It is for the legislature of each Member State to lay down those conditions, including those concerning termination of insurance (Case C-2/89 Kits van Heijningen  [1990] ECR I-1755, paragraph 19, and Kuusijärvi , cited above, paragraph 29).
34. Furthermore, the provisions of Title II of Regulation No 1408/71, of which Article 13 forms part, are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them ( Kits van Heijningen,  cited above, paragraph 12, and Kuusijärvi , cited above, paragraph 28).
35. It follows from Article 13(2)(f) of Regulation No 1408/71, however, that the legislation of the Member State of residence applies only if no other legislation is applicable and, in particular, only if the legislation to which the person concerned had previously been subject ceases to be applicable to him (Case C-347/98 Commission v Belgium  [2001] ECR I-3327, paragraphs 28 and 29). Accordingly, if compulsory social security ceases in a Member State, the provision cited above provides for insurance in the Member State of residence.
38. The principle that a single social security system is to apply, as laid down in Article 13(1) of Regulation No 1408/71, is not therefore called into question by the application of the Netherlands legislation at issue in the main proceedings.
39. However, although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, comply with Community law and, in particular, the provisions of the EC Treaty on freedom of movement for workers (Case C-135/99 Elsen  [2000] ECR I-10409, paragraph 33). Thus the optional system of insurance for non-residents must be compatible with Article 39 EC.
40. The residence requirement set by the Netherlands legislature as a condition for continuing to qualify for compulsory insurance in respect of some branches of social security is therefore compatible with Article 39 EC only if the conditions relating to voluntary insurance for non-residents are not less favourable than the conditions relating to compulsory insurance, for the same branches of social security, which residents obtain.
44. It follows from the foregoing that the Netherlands legislation in question in the main proceedings places non-residents in a less favourable position than residents with regard to their social security cover in the Netherlands, and therefore undermines the principle of free movement secured by Article 39 EC.
45. Consequently, the answer to the national court must be that Article 39 EC precludes legislation of a Member State pursuant to which a person who has ceased all occupational activity in its territory remains compulsorily insured in respect of some branches of social security only if he continues to reside there, whilst that person remains compulsorily insured under the legislation of that Member State in respect of certain other branches of social security even if his residence is in another Member State, in circumstances where the conditions relating to voluntary insurance, in respect of the branches for which compulsory insurance has ceased, are less favourable than those relating to compulsory insurance.
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