J. A. van Delft and Others v College voor zorgverzekeringen.
Date: 2010-10-14
38. It should be recalled, to begin with, that Articles 28 and 28a of Regulation No 1408/71 lay down a ‘conflict rule’ enabling the determination, in relation to pensioners residing in a Member State other than the State responsible for payment of the pension, of the institution responsible for provision of the benefits mentioned in those provisions and the legislation applicable (see Case 69/79 Jordens-Vosters  [1980] ECR 75, paragraph 12; Case C‑389/99 Rundgren  [2001] ECR I‑3731, paragraphs 43 and 44; and van der Duin and ANOZ Zorgverzekeringen , paragraph 39).
39. In accordance with Article 28 of Regulation No 1408/71, recipients of pensions payable under the legislation of a Member State who reside in another Member State, in which they are not entitled to sickness benefits in kind, are to receive those benefits from the competent institution of their Member State of residence, on behalf and at the expense of the State responsible for payment of the pension, in so far as they would be entitled to them under the legislation of the State responsible for payment of the pension if they were resident in its territory (see van der Duin and ANOZ Zorgverzekeringen , paragraphs 40, 47 and 53).
40. Article 28a of Regulation No 1408/71 lays down a substantially similar rule where there is an entitlement to sickness benefits in kind in the Member State of residence, that State not subjecting the right to those benefits to insurance or employment conditions; this is in order not to penalise Member States whose legislation confers a right to receive benefits in kind merely by virtue of residence in their territory (see Rundgren , paragraphs 43 and 45).
46. On this point, it should be noted that under Article 13(2)(f) of Regulation No 1408/71 a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with the provisions of Article 13(2)(a) to (d) or Articles 14 to 17 of that regulation, is subject to the legislation of the Member State in whose territory he resides. According to settled case-law, Article 13(2)(f) applies inter alia to persons who have definitively ceased all activity (Case C‑275/96 Kuusijärvi  [1998] ECR I‑3419, paragraphs 39 and 40, and Case C‑372/02 Adanez-Vega  [2004] ECR I‑10761, paragraph 24).
47. However, that provision of a general nature, which appears in Title II of Regulation No 1408/71, ‘Determination of the legislation applicable’, applies only in the absence of provision to the contrary in the spec ial provisions relating to the various categories or benefits which constitute Title III of that regulation (see Case 227/81 Aubin  [1982] ECR 1991, paragraph 11).
51. As regards, firstly, the possibility for pensioners residing in a Member State other than the State responsible for payment of the pension to waive the application of the system laid down in Articles 28 and 28a of Regulation No 1408/71, it is settled case-law that the provisions of Regulation No 1408/71 determining the applicable legislation form a complete system of conflict rules the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (see, inter alia, Adanez-Vega , paragraph 18 and the case‑law cited).
52. Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, a fortiori  it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application. The application of the system of conflict rules established by Regulation No 1408/71 depends solely on the objective situation of the worker concerned (see, to that effect, Case 11/67 Couture  [1967] ECR 379, 388; Case 12/67 Guissart  [1967] ECR 425, 433; and Case C‑60/93 Aldewereld  [1994] ECR I‑2991, paragraphs 16 to 20).
53. In this context, the Court has held with reference to migrant workers that neither the FEU Treaty, in particular Article 45 TFEU, nor Regulation No 1408/71 gives those workers the option to waive in advance the benefit of the mechanism introduced inter alia by Article 28(1) of that regulation (Case C‑160/96 Molenaar  [1998] ECR I‑843, paragraph 42).
54. Moreover, where Regulation No 1408/71 gives insured persons within its scope a right of choice as to the legislation applicable, it does so expressly ( Aubin , paragraph 19).
57. By contrast, as the Advocate General observes in point 47 of his Opinion, Articles 28 and 28a of Regulation No 1408/71 are worded in terms which do not confer any right to choose on the pensioners who come under those provisions. Article 28 lays down a mandatory rule that, where the recipient of a pension due under the legislation of a Member State resides in another Member State in which he is not entitled to benefits, he is nevertheless to ‘receive’ benefits in kind provided by the competent institution of that Member State, in so far as he would be entitled to them if he resided in the Member State responsible for payment of his pension. Similarly, where the Member State of residence provides for an entitlement to benefits in kind, Article 28a of the regulation requires, without offering any alternative, the Member State responsible for payment of the pension to bear the cost of those benefits, again in so far as the pensioner would be entitled to them if he resided in the Member State responsible for payment of the pension.
61. By issuing a Form E 121, the competent institution of a Member State does no more than declare that the insured person concerned would be entitled to benefits in kind under the legislation of that State if he resided there (see, by analogy, Case C‑202/97 FTS  [2000] ECR I‑883, paragraph 50, and Case C‑178/97 Banks and Others  [2000] ECR I‑2005, paragraph 53).
74. However, that does not in any way affect the existence of the right to those benefits and hence the corresponding obligation to pay to the competent institutions of the Member State whose legislation gives rise to such a right the contributions payable in return for the risk borne by that State under Regulation No 1408/71. As the Court has previously held, there is no rule of European Union law which requires the competent institution of a Member State to ascertain whether an insured person is likely to be able actually to receive all the benefits of a sickness insurance scheme before registering that person and collecting the corresponding contributions ( Molenaar , paragraph 41).
75. As the Netherlands Government and the European Commission submit, the obligation to pay contributions because of the existence of a right to benefits, even if those benefits are not actually received, is inherent in the principle of solidarity which is implemented by national social security schemes, since in the absence of such an obligation the persons concerned might be induced to wait for the risk to materialise before contributing to the financing of the system.
79. It follows that the Member State responsible for payment of the pension paid to a pensioner resident in another Member State bears the essential risk linked to the provision of sickness benefits in kind in the Member State in which that person resides.
84. It must be noted that it follows both from the case-law of the Court and from Article 168(7) TFEU that European Union law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care. In the absence of harmonisation at European Union level, it is thus for the legislation of each Member State to determine the conditions for granting social security benefits. However, when exercising that power, the Member States must comply with European Union law, in particular the provisions of the Treaty on freedom of movement for workers and on the freedom of every citizen of the Union to move and reside in the territory of the Member States (see, to that effect, inter alia, Case C‑208/07 von Chamier-Glisczinski  [2009] ECR I‑6095, paragraph 63 and the case-law cited, and Case C‑211/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 53).
85. That being so, the interpretation of Regulation No 1408/71 given by the Court in answer to the first question must be understood without prejudice to the result of the possible applicability of provisions of primary law. The fact that national legislation may be in conformity with secondary law, in this case Regulation No 1408/71, does not have the effect of removing it from the scope of the provisions of the Treaty (see, inter alia, Case C‑372/04 Watts  [2006] ECR I‑4325, paragraph 47; von Chamier-Glisczinski , paragraph 66; and Commission  v Spain , paragraph 45).
86. It follows that the applicability of Articles 28, 28a and 33 of Regulation No 1408/71 to a situation such as that at issue in the main proceedings does not in itself rule out the possibility that the appellants in the main proceedings may be able, on the basis of primary law, to contest the deduction of contributions from their pensions by the competent institution of the Member State responsible for payment of their pensions for the provision of sickness benefits in kind by the competent institution of their Member State of residence (see, by analogy, von Chamier-Glisczinski , paragraph 66).
88. On the question of the applicability of Article 45 TFEU, it should be noted at the outset that there is no sing le definition of worker/employed or self-employed person in European Union law; it varies according to the area in which the definition is to be applied. Thus the concept of ‘worker’ used in the context of Article 45 TFEU does not necessarily coincide with the definition applied in relation to Article 48 TFEU and Regulation No 1408/71 (see von Chamier-Glisczinski , paragraph 68 and the case-law cited).
89. As regards Article 45 TFEU, it is settled case-law that the concept of ‘worker’ within the meaning of that provision has an autonomous meaning specific to European Union law and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship, according to that case-law, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see von Chamier-Glisczinski , paragraph 69 and the case-law cited).
90. Moreover, while Article 45(3)(d) TFEU and Article 17(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) provide for a right of a person, after ceasing work, to stay in the Member State to which he moved for the purpose of working there, it follows from the case-law that a person who has carried out all his occupational activity in the Member State of which he is a national and has exercised the right to reside in another Member State only after his retirement, without any intention of working in that other State, cannot rely on the principle of freedom of movement for workers (Case C‑520/04 Turpeinen  [2006] ECR I‑10685, paragraph 16, and Case C‑544/07 Rüffler  [2009] ECR I‑3389, paragraph 52).
97. It is settled case-law that the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his stay in another Member State by legislation of his Member State of origin penalising him for the mere fact that he has used those opportunities (see von Chamier-Glisczinski , paragraph 82 and the case-law cited).
99. On this point, it must be recalled that, since Article 48 TFEU provides for the coordination, not the harmonisation, of the legislations of the Member States, substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons who are insured persons there, are unaffected by that provision, as each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions for granting benefits under a social security scheme (see, to that effect, von Chamier-Glisczinski , paragraph 84).
100. In those circumstances, Article 21(1) TFEU cannot guarantee to an insured person that a move to another Member State will be neutral in terms of social security, in particular as regards sickness benefits. In view of the disparities existing between the schemes and legislations of the Member States in this field, such a move may, depending on the case, be more or less advantageous or disadvantageous for the person concerned from the point of view of social protection (see von Chamier-Glisczinski , paragraph 85).
101. It follows that, even where its application is thus less favourable, national social security legislation is still compatible with Article 21 TFEU as long as it does not simply result in the payment of social security contributions on which there is no return (see, by analogy, Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829, paragraph 51; Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraph 34; and Case C‑50/05 Nikula  [2006] ECR I‑7029, paragraph 30).
106. However, since such a difference in the level of protection against the risk of sickness between the national social security schemes of the Member States is the result of the lack of harmonisation of European Union law in this field, it cannot, in accordance with the case-law cited in paragraphs 99 and 100 above, be regarded as a restriction caught by Article 21(1) TFEU. Contrary to the submissions of Mr van Delft and Mr van Willigen, it is immaterial in this respect that they transferred their residence to another Member State before rather than after the ZVW entered into force.
114. It is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of provisions of national law or on the assessment of the factual context of the main proceedings, which is a task reserved exclusively for the referring court (see, to that effect, inter alia, Joined Cases C‑378/07 to C‑380/07 Angelidaki and Others  [2009] ECR I‑3071, paragraph 48).
129. Even acts of the authorities of the Member States which do not have binding force may be capable of influencing the conduct of undertakings and thus of frustrating the aims pursued by Article 21 TFEU. That would be the case if a tariff practice adopted by insurance companies represented the implementation of a ‘political’ agreement defined by the Netherlands Government and intended to ensure the continuity of the overall protection of residents alone, to the exclusion of non‑residents (see, by analogy, Case 249/81 Commission  v Ireland  [1982] ECR 4005, paragraphs 27 to 29).