Herman Nijhuis v Bestuur van het Landelijk instituut sociale verzekeringen.
Date: 1999-04-20
22 That court was unsure whether, bearing in mind the Court's recent case-law (see, in particular, Case C-227/94 Olivieri-Coenen v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1995] ECR I-3301, Case C-443/93 Vougioukas v IKA [1995] ECR I-4033, and Case C-248/96 Grahame and Hollanders v Bestuur van de Nieuwe Algemene Bedrijfsvereniging [1997] ECR I-6407), the refusal by the NAB was in accordance with Community law.  More specifically, it wondered whether, having regard in particular to Articles 48 and 51 of the EC Treaty, Point 4(a) of Section J of Annex VI to Regulation No 1408/71 did not, per se, oblige the competent Netherlands institution to take account of the period completed under the ABPW. The Centrale Raad van Beroep was also unsure as to the determination of the competent Netherlands institution for the purposes, should the case arise, of payment of the invalidity pension to Mr Nijhuis.
28 On this point it should be observed, as the Court noted in paragraph 30 of its judgment in Vougioukas, cited above, that, in order to safeguard the effective exercise of the right to freedom of movement enshrined in Article 48 of the Treaty, the Council is required, under Article 51 thereof, to set up a system to enable migrant workers to overcome obstacles with which they might be confronted through differences between national social security rules.
30 It is important, however, to bear in mind that the Council enjoys a wide discretion in regard to the choice of the most appropriate measures for achieving the result envisaged in Article 51 of the Treaty.  Consequently, national bodies to which applications for social security benefits under a special scheme for civil servants or persons treated as such have been made directly under Articles 48 and 51 of the Treaty, before measures to coordinate such schemes have been adopted at Community level cannot be required to apply by analogy the provisions of Regulation No 1408/71 laid down for the social security schemes coming within its material scope.  The position could be different only if it were possible to overcome the negative consequences which national legislation has for workers who have exercised their right of free movement without having recourse to Community coordination measures.
33 As regards the judgments in Olivieri-Coenen and Grahame and Hollanders, cited above, although these were also concerned with the award of invalidity benefits under Netherlands legislation, the reference made to them has no relevance in the present case.  Those judgments deal with the taking into account of periods of employment and periods treated as such completed in the Netherlands prior to 1 January 1967, the date on which the WAO entered into force, whereas the taking of such factors into account was expressly provided for in Point 4(a) of Section I of Annex V to Regulation No 1408/71, as it applied on 1 February 1982, in Olivieri-Coenen, and in Point 4(a), third indent, of Section J of Annex VI to Regulation No 1408/71 in Grahame and Hollanders.  As the LISV and the Netherlands Government have pointed out, in the main proceedings the periods of employment completed by Mr Nijhuis in the Netherlands were between 15 October 1968 and 1 April 1974.