Theodora Hendrika Bouman v Rijksdienst voor Pensioenen.
Date: 2015-02-12
24. As regards the question whether the institutions of another Member State are bound by such a statement drawn up in accordance with Article 47 of Regulation No 574/72, it should be recalled that the Court has held that a certified statement issued by the competent institution of a Member State specifying the periods of insurance or employment completed as an employed person under the legislation of that Member State does not constitute irrefutable proof for the competent institution of another Member State, nor for the courts of that Member State (see, to that effect, judgments in Knoch , EU:C:1992:303, paragraph 54, and Adanez-Vega , C‑372/02, EU:C:2004:705, paragraphs 36 and 48).
26. That finding cannot be called into question on the ground that the Court has held that, as long as it has not been withdrawn or declared invalid by the authorities of the Member State which issued it, a statement drawn up pursuant to the provisions of Title III of Regulation No 574/72, entitled ‘Implementation of the provisions of the regulations for determining the legislation applicable’, that is, an E 101 certificate, is binding on the social security institutions and the courts of the Member State in which the workers concerned are posted, in so far as it certifies that those workers are affiliated to the social security scheme of the Member State in which their undertaking is established (see, to that effect, judgments in FTS , C‑202/97, EU:C:2000:75, paragraph 55, and Herbosch Kiere , C‑2/05, EU:C:2006:69, paragraphs 26 and 31).
27. In this connection, it should be stated that although limiting the review by the court of the validity of such an administrative document as regards the certification of the matters on the basis of which it was issued is justified for reasons of legal certainty (see judgment in Herbosch Kiere , EU:C:2006:69, paragraph 32), such an approach cannot automatically be applicable to a statement such as that drawn up by the SVB in the case in the main proceedings. When the authorities of the Member State in question have to determine the rights of a person concerned resulting from the legislation of that Member State, they must also have the possibility of reviewing all the relevant particulars in the documents drawn up by the authority of the Member State of origin that issued the statement.
31. In that context, the meaning and scope of those terms must be determined, in accordance with settled case-law, taking into account both the terms in which the provision of EU law concerned is couched and its context (see, to that effect, judgments in BLV Wohn- und Gewerbebau , C‑395/11, EU:C:2012:799, paragraph 25, and Lundberg , C‑317/12, EU:C:2013:631, paragraph 18); the objectives pursued by the legislation of which it forms part (see, in particular, judgment in Lundberg , EU:C:2013:631, paragraph 19); and, in the circumstances of this case, the origins of that legislation (see, by analogy, judgment in Pringle , C‑370/12, EU:C:2012:756, paragraph 135).
32. As regards the wording of Article 46a(3)(c) of Regulation No 1408/71, the Court has held that even though a comparison of the different language versions of the term ‘voluntary insurance or continued optional insurance’ reveals variations, they in any case show an intention to cover every type of insurance incorporating a voluntary element (see judgment in Liégeois , 93/76, EU:C:1977:50, paragraphs 12 to 14).
33. As regards the context of Article 46a(3)(c) of Regulation No 1408/71, it should be recalled that, according to settled case-law, Regulation No 1408/71 establishes a system for the coordination of national social security schemes and lays down, in Title II thereof, rules governing the determination of the legislation to be applied. Those rules are intended not only to ensure that the persons concerned are not left without social security cover because there is no legislation which is applicable to them, but also to ensure that the persons concerned are subject to the social security scheme of only one Member State, so that the complications arising from more than one system of national legislation being applicable are avoided (see judgment in I , C‑255/13, EU:C:2014:1291, paragraph 40 and the case-law cited).
35. Furthermore, it is not disputed that the general provisions that appear in Title II of Regulation No 1408/71 apply only in the absence of provisions to the contrary in the special provisions relating to the various categories of benefits which constitute Title III of that regulation (see, in particular, judgment in Aubin , 227/81, EU:C:1982:209, paragraph 11).
38. That finding is supported by the objective pursued by Regulation No 1408/71 of ensuring, as stated in the second and fourth recitals in the preamble, free movement of employed and self-employed persons within the European Union, while respecting the special characteristics of national social security legislations. To that end, as is clear from the fifth, sixth and tenth recitals in the preamble thereto, that regulation upholds the principle of equality of treatment of workers under the various measures of national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right of free movement (see judgment in Tomaszewska , C‑440/09, EU:C:2011:114, paragraph 28 and the case-law cited).
39. Therefore, the provisions of Regulation No 1408/71 must be interpreted in the light of Article 48 TFEU which aims to facilitate freedom of movement for workers and entails, in particular, that migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the FEU Treaty (see, inter alia, judgments in Bosmann , C‑352/06, EU:C:2008:290, paragraph 29, and Hudzinski and Wawrzyniak , C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 46).
40. Likewise, the first recital in the preamble to Regulation No 1408/71 states that the provisions which that regulation contains for coordination of national social security legislations fall within the framework of freedom of movement of persons and should contribute towards the improvement of their standard of living (see judgments in Bosmann , EU:C:2008:290, paragraph 30, and Hudzinski and Wawrzyniak , EU:C:2012:339, paragraph 47).
45. In the judgment in Schaap  (176/78, EU:C:1979:112, paragraphs 10 and 11), the Court held that although Article 46(2) of Regulation No 574/72 appears under the above-mentioned heading, it must be applied to each case falling within Article 46(3) of Regulation No 1408/71 so that for the purposes of the application of that paragraph, the competent institution may not take account of the amount of benefits corresponding to periods [of insurance] completed under voluntary insurance or optional continued insurance.
48. According to settled case-law, that concept covers every type of insurance incorporating a voluntary element, whether or not there is any continuance of existing insurance (see judgments in Liégeois , EU:C:1977:50, paragraphs 12 to 14, and Hartmann Troiani , 368/87, EU:C:1989:206, paragraph 12).