Raad van bestuur van de Sociale verzekeringsbank v E. Fischer-Lintjens.
Date: 2015-06-04
37. The provisions of that regulation which determine 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, in particular, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 51 and the case-law cited).
38. Since the conflict rules laid down by Regulation No 1408/71 are thus mandatory for the Member States, the Court has previously held that 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 that regulation depends solely on the objective situation of the worker concerned (see, to that effect, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 52 and the case-law cited).
39. It should also be recalled that, according to settled case-law of the Court, the purpose of the provisions of that regulation which determine the applicable legislation is 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 the regulation are not left without social security cover because there is no legislation which is applicable to them (see, to that effect, judgment in Mulders , C‑548/11, EU:C:2013:249, paragraph 39 and the case-law cited).
41. Article 27 of Regulation No 1408/71 concerns a pensioner who is entitled to draw pensions under the legislation of two or more Member States, including that of his Member State of residence, and is entitled to sickness and maternity benefits in that Member State. That article, in conjunction with Article 28 of the regulation, has the purpose of determining, first, the institution responsible for providing persons entitled to a pension with those sickness and maternity benefits and, secondly, the institution responsible for bearing the cost (see, to that effect, judgment in Rundgren , C‑389/99, EU:C:2001:264, paragraphs 43 and 44).
42. The system introduced by those articles thus establishes a connection between the competence to provide pensions and the obligation to bear the costs of benefits in kind, that obligation consequently being incidental to an actual competence in respect of pensions. The cost of benefits in kind cannot therefore be assigned to the institution of a Member State which has only a hypothetical competence in respect of pensions. It follows that Article 27 of Regulation No 1408/71, like Article 28 of the regulation, when it refers to a pension payable, refers to a pension which is actually paid to the person concerned (see, to that effect, judgment in Rundgren , C‑389/99, EU:C:2001:264, paragraph 47).
48. In this regard, it may indeed be legitimate for a Member State to restrict the possibility of taking out health care insurance with retroactive effect, with the aim of encouraging persons who are obliged to take out such insurance to do so as quickly as possible. Thus the Court has previously held that an 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 (see, to that effect, judgment in van Delft and Others , C‑345/09, EU:C:2010:610, paragraph 75).
49. However, the conditions of affiliation to the social security schemes of the Member States, the organisation of which is within their powers, must comply with EU law and must not have the effect of excluding from the scope of national legislation, such as that at issue in the main proceedings, persons to whom that legislation applies pursuant to Regulation No 1408/71 (see, to that effect, judgments in Kits van Heijningen , C‑2/89, EU:C:1990:183, paragraph 20, and Salemink , C‑347/10, EU:C:2012:17, paragraphs 38 to 40).
52. However, in accordance with the case-law referred to in paragraph 39 above, an insured person such as Ms Fischer-Lintjens who falls within the scope of Regulation No 1408/71 cannot be left without social security cover because there is no legislation which is applicable to him (see, by analogy, judgment in Kuusijärvi , C‑275/96, EU:C:1998:279, paragraph 28).