C-282/91

Report for the Hearing in Case C-282/91

CELEX: 61991CJ0282
Datum: 1993-03-30
Källa: eur-lex.europa.eu

I — Facts and procedure

1. In the Netherlands, the Algemene Ouderdomswet (General Law on Old-Age Insurance, hereinafter ‘the AOW’) of 31 May 1956 (Staatsblad, 281), which entered into force on 1 January 1957, established for the benefit of residents and nonresidents liable to tax on income from employment in the Netherlands a general old-age pension scheme under which pension rights are acquired on the basis of the insurance periods completed. Any person who reaches the age of 65 is entitled to a full old-age pension under the AOW if he was insured for 50 years between the date on which he reached the age of 15 and the date on which he reached the age of 65. According to Article 13(1) of the AOW, the full pension is in principle to be reduced by 2% for each year in which the pensioner failed to pay the contribution payable. Originally, Article 6(1)(c) of the AOW provided that a Dutch national residing abroad and in receipt of a salary or remuneration from the State in respect of employment outside national territory was insured under the AOW. The law of 30 July 1965 (Stb. 347) repealed that provision with effect from 1 January 1965 and replaced it by Article 3(4) of the AOW, which is worded as follows: Article 3(4) of the AOW was repealed, with effect from 1 April 1985, by the Law of 28 March 1985 (Stb. 180). As from that date, the position of Netherlands nationals residing outside Netherlands territory and employed by a body governed by Netherlands public law has been covered by the Besluit Uitbreiding en Beperking Kring Verzekerden Volksverzekeringen of 19 October 1976 (Stb. 557) (Royal Decree on the extension and restriction of the category of insured persons for social insurance purposes) which, in Article 1(1), as amended by the Royal Decree of 26 April 1985 (Stb. 297), provides as follows: In order to avoid a situation in which only persons who had not yet reached the age of 15 on 1 January 1957, the date on which the AOW entered into force, could acquire entitlement to a full pension between then and the year 2007, the AOW provides for a transitional scheme under which a person may, on certain conditions, be deemed to have been insured under the AOW between his fifteenth birthday and 1 January 1957. Those conditions are that the pensioner has resided in the Netherlands, the Netherlands Antilles or Aruba for a period of six years after reaching the age of 59 (Article 55(1) of the AOW) and, in addition, that he is residing in the Netherlands at the time when he claims entitlement to the pension (Article 56 of the AOW), unless he has been insured without interruption under the AOW from 1 January 1957 until his sixty-fifth birthday.

‘A Netherlands national who is in the service of a body governed by Netherlands public law and who resides outside the Kingdom, together with his spouse and the children in respect of whom he is in receipt of family allowances under the Algemene Kinderbijslagwet (General Law on Family Allowances), are to be deemed to be resident within the Kingdom. That provision shall not apply to a Netherlands national, his spouse and children:

a) if that national works outside the Kingdom in the country in which he was recruited, unless his status is that of military personnel;

b) if that national has the status of military personnel and is deemed by virtue or in pursuance of general administrative provisions to be permanently employed outside the Kingdom.’

‘The following shall be regarded as insured persons:

a) a Netherlands national resident outside the Kingdom who is in the service of a body governed by Netherlands public law ...’.

2. Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation No 2332/89 of 18 July 1989, provides in section 2(a) of Part J (Netherlands) of Annex VI, headed ‘Application of Netherlands legislation on general old-age insurance (AOW)’, as follows: In its previous version, as set out in Council Regulation (EEC) No 2001/83 of 2 June 1983 amending and updating in particular Regulation No 1408/71 (OJ 1983 L 230, p. 6), that provision was worded as follows: Pursuant to Article 3(7) of Regulation No 2332/89, the new version of section 2(a) of Part J of Annex VI to Regulation No 1408/71 has been applicable since 1 April 1985.

‘The reduction referred to in Article 13(1) of the AOW shall not be applied for calendar years or parts thereof before 1 January 1957 during which a recipient, not satisfying the conditions permitting him to have such years treated as periods of insurance, resided in the territory of the Netherlands between the ages of 15 years and 65 years, or during which, whilst residing in the territory of another Member State, he pursued an activity as an employed person in the Netherlands for an employer established in that country.’

‘Periods of insurance before 1 January 1957 during which a recipient, not satisfying the conditions permitting him to have such periods treated as periods of insurance, resided in the territory of the Netherlands after the age of 15 or during which, whilst residing in the territory of another Member State, he pursued an activity as an employed person in the Netherlands for an employer established in that country, shall also be considered as periods of insurance completed in application of Netherlands legislation for general old-age insurance.’

3. Mr A. de Wit is a Netherlands national who resided in the Netherlands until 20 November 1945. On that date, he became a public servant at the War Ministry, and subsequently at the Ministry of Foreign Affairs; he went on to occupy a number of posts outside the Netherlands. On 27 October 1947 his name was officially deleted from the population register for the municipality of Waddinxveen. On 1 August 1978 Mr de Wit resigned from his post and has since lived in Ireland. Upon reaching the age of 65 on 10 June 1985, Mr de Wit was awarded by decision of 21 July 1986 of the Sociale Verzekeringsbank (hereinafter ‘the SVB’) an old-age pension under the AOW together with supplement and associated holiday benefit as from 1 June 1985. The SVB calculated the pension at 68% of the full entitlement on the ground that Mr de Wit had not been insured between 27 October 1947 (the date on which his name was deleted from the population register for Waddinxveen) and 1 January 1957 (the date on which the AOW entered into force), or between 1 August 1978 (the date of his resignation) and 10 June 1985 (the date of his sixty-fifth birthday), that is to say for a total period of more than sixteen years. Mr de Wit considered that the SVB had wrongly refused to treat as an insurance period for the purposes of the calculation of his old-age pension the period between 27 October 1947 and 1 January 1957. He instituted proceedings against the SVB's decision before the Raad van Beroep, Amsterdam, claiming that the concept of ‘residence’ in section 2(a) of Part J of Annex-VI to Regulation No 1408/71 must be interpreted as comprising ‘notional residence’, a concept to be found, between 1 January 1965 and 1 April 1985, in Article 3(4) of the AOW. Following the dismissal of his action by the Raad van Beroep, Mr de Wit appealed to the Centrale Raad van Beroep (Court of Last Instance in Social Security Matters), which set aside the contested decision and the judgment appealed against. In cassation proceedings brought by the SVB, the Hoge Raad der Nederlanden took the view that the dispute raised a number of questions concerning the interpretation of section 2(a) of Part J of Annex VI to Regulation No 1408/71, whereupon by judgment of 30 October 1991, it requested the Court of Justice to give a preliminary ruling on the following question: In its order for reference, the Hoge Raad points out that the Centrale Raad van Beroep had based its judgment on the consideration that in interpreting the concepts mentioned in Annex VI — in so far as those concepts have been defined in national law — regard must be had to the concepts of national law in force when the annex in question was adopted as part of Regulation No 1408/71. The Hoge Raad also points out that the fact that under the national legislation in force since 1 April 1985 a Netherlands national who resides outside the Netherlands and works for a body governed by Netherlands public law, together with his spouse, are deemed to be insured without reference to the notional residence device may be of some importance in the appeal proceedings before it. Finally, it points out that according to its own case-law, the dispute must be assessed in the light of the new wording of Annex VI, which has been applicable with retroactive effect since 1 April 1985, since in determining the extent of Mr de Wit's rights, the law which was applicable at the date on which he reached the age of 65 — that is to say, 10 June 1985 — is decisive.

‘Must the expression “resided in the territory of the Netherlands” in section 2(a) of Part J of Annex VI to Council Regulation No 1408/71 of 14 June 1971 be interpreted as referring exclusively to actual residence in the territory of the Netherlands or does it also include the notional residence in Netherlands territory of a Netherlands national residing outside the Kingdom in the service of a body governed by Netherlands public law as provided for in (former) Article 3(4) of the AOW?’

4. The judgment of the Hoge Raad der Nederlanden was lodged at the Court Registry on 6 November 1991.

5. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 7 January 1992 by Mr de Wit, on 24 February 1992 by the Commission of the European Communities, represented by B. J. Drijber, of its Legal Service, acting as Agent, by the Bestuur van de Sociale Verzekeringsbank, Amstelveen, the appellant, represented by E. H. Pijnacker Hordijk, of the Amsterdam Bar, and by the Government of the Kingdom of the Netherlands, represented by B. R. Bot, Secretary General at the Ministry of Foreign Affairs.

6. On hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry.

7. By decision of 17 June 1992, the Court assigned the case to the Sixth Chamber pursuant to Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted by the parties

1. The SVB points out first of all that it is not disputed in the main proceedings that, as he went to live in Ireland at the age of 58, Mr de Wit does not fulfil the conditions laid down by national law for entitlement to the transitional benefits provided for by the AOW. However, although Mr de Wit could claim those benefits pursuant to Annex VI of Regulation No 1408/71 in respect of the period from 10 June 1935 (the date on which he reached the age of 15) to 27 October 1947 (the date from which he ceased to reside and work in the Netherlands), he could no longer do so for the period from 27 October 1947 to 1 January 1957 since section 2(a) of Part J of the annex in question provides that periods prior to 1 January 1957 are not to be treated as insurance periods unless, during those periods, the person concerned resided in the Netherlands between the ages of 15 and 65 or worked in the Netherlands for an employer established in that country. Next, the SVB refers to the Court's judgments in Case 284/84 Spruyt v Sociale Verzekeringsbank [1986] ECR 685, at paragraphs 12 and 18, and in Case C-293/88 Winter-Lutzins v Sociale Verzekeringsbank [1990] ECR I-1623, at paragraphs 12 and 13, in support of the view that the provisions of Annex VI to Regulation No 1408/91 are complex in nature. On the one hand, they should be interpreted in the light of Community law, more specifically Article 51 of the Treaty, which Regulation No 1408/71 and the annexes thereto were adopted to implement. On the other hand, they should be considered in the light of the system and provisions of the relevant national legislation, with reference to which they were drawn up and which they are intended to supplement. It follows from those judgments, moreover, that the provisions of Regulation No 1408/71, and more particularly those of Annex VI thereto, adopted in implementation of Article 51 of the Treaty, are designed to contribute to the establishment of the greatest possible freedom of movement from migrant workers, a principle which is one of the foundations of the Community, and that the rule in Article 10 of that regulation, whereby the application of residence clauses is set aside, cannot be applied without restriction to a general old-age insurance scheme in which the mere fact of residence in the Netherlands is sufficient qualification for insurance purposes, but that so far as the AOW is concerned, the detailed rules for the implementation of that principle are laid down in Annex VI (judgment in Spruyt, cited above, at paragraph 21; and judgment in Winter-Lutzins, cited above, at paragraph 16). The SVB therefore considers that the purpose of section 2(a) of Part J of Annex VI to Regulation No 1408/71 is to supplement the national provisions of the AOW so as to ensure that migration does not entail the loss of the transitional benefits in respect of the period before 1957 during which the person concerned resided or worked in the Netherlands. If, during the years in question, the person concerned had resided or worked in the Netherlands, then for the purposes of Regulation No 1408/71 there would be a sufficient connecting link with the Netherlands system for those years to be treated as periods of insurance completed in the Netherlands. The SVB adds that the phrase ‘op Nederlands grondgebied wonen’ (‘resided in the territory of the Netherlands’, according to the wording of the annex in force until 1 April 1985) and the phrase ‘in Nederland wonen’ (‘resided in the territory of the Netherlands’, according to the wording of the annex currently in force) are not simply based on a concept of national law. For the purposes of the application of Regulation No 1408/71, ‘residence’ should be defined in accordance with Community law and mean, in accordance with Article 1(h) of the regulation, ‘habitual residence’. Neither the wording of the regulation and the annex thereto nor the scheme of the regulation provide any support for the argument that the expressions in question, which are set out in Annex VI, should be defined in accordance with national law and that ‘residence in the Netherlands’ should also comprise ‘pursuing outside the Netherlands an activity as an employed person for a body governed by Netherlands public law’. The SVB also maintains that even if the Court were to accept that the expressions referred to in Annex VI to Regulation No 1408/71 must be interpreted in the light of Community law, it would in any event be impossible to determine entidement to the transitional benefits arising after 1 April 1985 on the basis of the provisions of the AOW repealed on 1 April 1985. When Mr de Wit reached the age conferring entitlement to a pension, namely 10 June 1985, the ‘notional residence’ device referred to in the (former) Article 3(4) of the AOW was no longer applicable. Finally, the SVB points out that it is clear from the wording of the annex in question, in the version which was in force before its amendment on 1 April 1985, that the terminology chosen differs from that of the AOW itself. The expression ‘resided in the territory of the Netherlands’ was not and is not used in the AOW itself. That expression emphasizes, moreover, that what is required is actual residence in the territory of the Netherlands. Furthermore, since ‘notional residence’, as referred to in Article 3(4) of the AOW, was abolished as from 1 April 1985, the new version of the annex, in the version which has been in force since that date, applies only to ‘residence in the territory of the Netherlands’. Accordingly, the SVB proposes that the Court should answer the question submitted by the Hoge Raad der Nederlanden as follows:

‘The expression “resided in the territory of the Netherlands” in section 2(a) of Part J of Annex VI to Council Regulation No 1408/71 of 14 June 1971 must be interpreted as referring exclusively to actual residence in the territory of the Netherlands.’

2. Mr de Wit merely points out that he objected to the SVB's decision not to take into consideration in calculating his pension the years from 1947 to 1957 for the following reasons: in 1945 he did not go to Germany voluntarily, but at the behest of the War Ministry as it was at the time; he was always regarded as a resident of the Kingdom of the Netherlands both by the War Ministry and, subsequently, by the Ministry of Foreign Affairs; the fact that in 1947 his name was deleted from the population register for the municipality of Waddinxveen on account of his departure for Germany is irrelevant, since at that time no foreigner was able to establish himself in that country, which was occupied by the allied armed forces; by virtue of the Vienna Convention on diplomatic relations, he always resided and worked in the Netherlands, even when he was abroad.

3. The Netherknds Government points out first of all that, in its judgment in Spruyt, the Court has already stated that section 2 of Part J of Annex VI to Regulation No 1408/71, which was drafted with the AOW specifically in mind and was designed to supplement that law, must be interpreted in the light of the scheme and provisions of that national legislation. It considers, however, that that reasoning cannot be applied without qualification to the present case which is concerned with a different problem from that which arose in the Spruyt case. It also emphasizes that (the former) Article 3(4) of the AOW was not yet in force prior to 1957 and had already been abolished when it was necessary to determine Mr de Wit's entitlement to an old-age pension. Next the Netherlands Government maintains that the definition (‘habitual residence’) which Article 1(h) of Regulation No 1408/71 gives of the term ‘residence’ is linked not to the formal conditions for establishment or registration, laid down in a given Member State, but to the actual circumstances of a specific case. In that regard, the duration of residence, and whether or not it is permanent, as well as the intention of the person concerned may be important factors. In any event, where it transpires, as is the case here, that a person has permanendy resided or worked outside the Netherlands during the period referred to in Annex VI to Regulation No 1408/71, it is unreasonable to assume that he or she has resided in the Netherlands. The Netherlands Government also maintains that, as it is in the nature of a derogation, section 2 of Part J of Annex VI to Regulation No 1408/71 does not permit other situations to be treated as residence in the Netherlands. The Council laid down those provisions restrictively and intended only to take into account situations which existed in the Netherlands during the period in question, that is to say before 1 January 1957. It is only in those circumstances that there is a sufficient link with the Netherlands scheme, as may be inferred from paragraph 17 of the judgment in Winter-Lutzins. According to the Netherlands Government, the AOW also allows persons in Mr de Wit's position, whose compulsory insurance under the AOW comes to an end when, not being resident in the Netherlands, they cease to be employed by a body governed by Netherlands public law, to enjoy transitional benefits through affiliation, in addition to compulsory insurance, to continued voluntary insurance under the AOW. When Mr de Wit resigned from his post with effect from 1 August 1978, he did not take advantage of the possibility of completing his insurance record under the continued voluntary insurance scheme, and he must therefore be deemed to have waived any right to the transitional benefits provided for by the AOW. Accordingly, the Netherlands Government proposes that the question submitted by the Hoge Raad der Nederlanden should be answered as follows:

4. The Commission considers that the question raises two different issues: whether a Member State can interpret the provisions of Annex VI to Regulation No 1408/71 from the point of view of its national legislation, and if not, whether, in a case such as this, the person concerned is entitled to claim the benefit of the rights conferred by the provisions of that annex. As regards the first issue, the Commission points out that the Court has laid down on several occasions that the nature and the scope of the fundamental concepts of Regulation No 1408/71 could not be determined by the Member States. So far as the concept of ‘worker’ is concerned, it refers to the Court's judgment in Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177. That rule should also apply with regard to the concept of ‘residence’ which is defined in Article 1(h) of Regulation No 1408/71 as ‘habitual residence’. According to the Commission, it is only where the regulation itself refers to the provisions of national law or where there is no Community definition that it is possible to take account of the legislation of the Member States for the purpose of interpreting a concept set out in the regulation in question. The Commission therefore considers that the concept of ‘notional residence’, which was to be found in (the former) Article 3(4) of the AOW but which does not feature in Regulation No 1408/71, cannot be equated with the concept of ‘residence’ within the meaning of section 2(a) of Part J of Annex VT to the regulation in question. According to the Commission, however, it does not follow that in this case Mr de Wit cannot rely on the relevant provisions of the annex. Those provisions are based on the notion that it is possible for persons to acquire pension rights in respect of periods after their fifteenth birthday but before 1 January 1957, during which they had a genuine connection with the Netherlands. In that regard, the Commission refers to paragraph 22 of the judgment in Spruyt, and paragraph 19 of the judgment in Winter-Lutzins, according to which ‘by application of Article 10(1) of Regulation No 1408/71, in accordance with the rules laid down in Annex VI persons who do not satisfy the continuing-residence condition and who had no link with the Netherlands between their fifteenth birthday and 1 January 1957 can thus be denied the right to have that period treated as a period of insurance for the purposes of the Algemene Ouderdomswet’. According to the Commission, it is possible to argue a contrario on the basis of that case-law that transitional benefits must be granted if there is indeed a link with the Netherlands, and the same holds true for persons who were subject to Netherlands social security legislation before 1 January 1957 in accordance with the rules in force at the time, notwithstanding the fact that they neither resided nor worked in the Netherlands. In the Commission's view, that could be so, for instance, in the case of a worker on secondment who resided and worked outside the Netherlands for a certain period but who continued, in accordance with bilateral agreements concluded between the Netherlands and other countries, to be affiliated to the Netherlands social security system, or in the case of a person who, like Mr de Wit, resided abroad in the service of the Netherlands public authorities before 1 January 1957 and was therefore subject to Netherlands legislation. Accordingly, the Commission proposes that the Court should answer the question submitted by the Hoge Raad der Nederlanden as follows:

‘Section 2(a) of Part J of Annex VI to Council Regulation (EEC) No 1408/71 must be interpreted as meaning that the reduction to which it refers does not apply to the calendar years or parts thereof before 1 January 1957 during which a recipient not satisfying the conditions on the basis of which such years may be treated as periods of insurance was subject between his fifteenth and his sixty-fifth birthday to Netherlands social security legislation, even though he neither resided nor worked in the Netherlands in the service of an employer established in that country’.

F. A. Schockweiler

Judge-Rapporteur

1 Language of the case: Dutch.