Raad van bestuur van de Sociale verzekeringsbank v L. F. Evans.
Date: 2015-01-15
33. It should also be recalled, first, that EU law does not, in principle, affect the competence of the Member States to regulate their social security systems (see, to that effect, judgment in Salgado González , C‑282/11, EU:C:2013:86, paragraph 35 and the case-law cited).
34. In the absence of harmonisation at EU level, it is, in principle, for the legislation of each Member State 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 (see, to that effect, judgment in van Pommeren-Bourgondiën , C‑227/03, EU:C:2005:431, paragraph 33, and Bakker , C‑106/11, EU:C:2012:328, paragraph 32).
35. Second, EU law must be interpreted in the light of the relevant rules of international law, since international law is part of the European Union legal order and is binding on the institutions (see, to that effect, judgment in Racke , C‑162/96, EU:C:1998:293, paragraphs 45 and 46, and Kadi et Al Barakaat International Foundation v Council and Commission , C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291).
36. As the Advocate General observed in point 52 of his Opinion, the idea of being ‘subject to the legislation of a Member State’, as referred to in Article 2 of Regulation No 1408/71, ought to be interpreted in the light of the relevant rules of customary international law (see, by analogy, judgment in Salemink , C‑347/10, EU:C:2012:17, paragraph 31), namely the Vienna Convention of 1963, which codifies the law of consular relations and states principles and rules essential for the maintenance of peaceful relations between States and accepted throughout the world by nations of all creeds, cultures and political complexions (see judgment of the International Court of Justice of 24 May 1980, case concerning the diplomatic and consular staff of the United States of America in Tehran ( United States of America  v Iran ), Reports of Judgements, Advisory Opinions and Orders 1980, p. 3, paragraph 45).
43. In this context it is important to note that the aim of Article 13(2)(a) of Regulation No 1408/71 is not to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme. As is apparent from the case-law cited in paragraph 34 of the present judgment, it is for the legislation of each Member State to lay down these conditions (judgments in Kits van Heijningen , C‑2/89, EU:C:1990:183, paragraph 19, and Salemink , EU:C:2012:17, paragraph 38 and the case-law cited).
44. Although Member States retain the power to organise the conditions of affiliation to their social security schemes, they must none the less, when exercising that power, comply with EU law. As the referring court observes, the Court of Justice has held that the conditions creating the right or the obligation to become affiliated to a social security scheme may not have the effect of excluding from the scope of national legislation persons to whom that legislation applies pursuant to Regulation No 1408/71 (judgments in Salemink , EU:C:2012:17, paragraph 40, and Bakker , EU:C:2012:328, paragraph 33). Consequently, the effect of Article 13(2)(a) of Regulation No 1408/71 is that a provision of the applicable national legislation pursuant to which cover by the social security scheme established by that legislation is conditional on residence in the Member State concerned may not be relied on against the persons referred to in that provision (see, to that effect, judgments in Salemink , EU:C:2012:17, paragraph 45, and Bakker , EU:C:2012:328, paragraph 35 and the case-law cited).