JUDGMENT OF 7. 6. 1973 — CASE 82/72 WALDER v SOCIALE VERZEKERINGSBANK

In Case 82/72 Reference to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep at Utrecht for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, R. Monaco (Rapporteur) and P. Pescatore, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, H. Kutscher, C. Ó Dalaigh, M. Sørensen and A. Mackenzie Stuart, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted by the Commission and by the Sociale Verzekeringsbank

Grounds of judgment

Costs

I —. Facts and procedure

1. By a decision dated 30 March 1972, the Sociale Verzekeringsbank in Amsterdam granted to Mr. C. J. Walder, a Dutch national, born in 1905 and permanently resident in Belgium, an old-age pension, commencing from 1 January 1970, at the rate of 4 % of the old-age pension which an unmarried beneficiary could receive under the algemene Ouderdomswet (General Old-Age Insurance Law) (hereinafter called AOW).

2. The Commission of the European Communities, represented by its legal advisers Robert C. Fischer and Jan Gijssels, acting as agents, assisted by Miss Marie-Jose Jonczy, submitted written observations in accordance with the provisions of Article 20 of the Protocol on the Statute of the Court of Justice.

II —. Observations submitted by the Commission and by the Sociale Verzekeringsbank

A —. The Commission explains firstly the origin of the legislation material to the present case. It recalls that the invalidity and old-age insurance scheme for wage-earners was replaced in the Netherlands, as from 1 January 1957, by a general old-age insurance scheme applicable to all residents (AOW).

B —. In a statement submitted for the purposes of the oral procedure, the Sociale Verzekeringsbank replies, firstly, to the wirtten observations of the Commission by explaining the scope of the transitional system of the AOW and by pointing out that in any case the bilateral Convention between Belgium and the Netherlands remained in force in its entirety as regards persons not covered by Regulations Nos 3 and 1408/71. It further observes that, having regard to Articles 7 and 48 (2) of the EEC Treaty and to Article 8 of Regulation No 3, it perhaps ought to be conceded that nationals of Member States other than the Netherlands and Belgium should also benefit from the advantages resulting from the said bilateral Convention, (now see also Article 3 (3) of Regulation No 1408/71).

1. By order dated 14 December 1972, filed in the Court Registry on 21 December 1972, the Centrale Raad van Beroep asked for a preliminary ruling, under Article 177 of the EEC Treaty on questions concerning the interpretation of Council Regulation No 3 on social security for migrant workers, and also of Regulation No 1408/71 relating to the application of social security systems for wage-earners and their families moving within the Community.

2. By the first question the Court is asked to say whether Articles 5 and 6 of Regulation No 3 must be interpreted as meaning that the Regulation replaces social security Conventions concluded between Member States which are not mentioned in Article 6 (1) and (2) or in Annex D, even though persons entitled to benefit would derive greater advantage from the application of such Conventions than from the said Regulation.

3. The same problem is put to the Court by the third question concerning the interpretation of Articles 6 and 7 and Annex II of Regulation No 1408/71.

4. Article 5 of Regulation No 3 provides:

5. Article 6 (2) of that Regulation states:

6. It is clear from these provisions that the principle that the provisions of social security Conventions concluded between Member States are replaced by Regulation No 3 is mandatory in nature and does not allow of exceptions save for the cases expressly stipulated by the Regulation.

7. The fact that social security Conventions concluded between Member States are more advantageous to persons covered by Regulation No 3 than the Regulation itself is therefore not sufficient to justify an exception to this principle unless such Conventions are expressly preserved by the Regulation.

8. Consequently, the answer to the first question must be that, according to Articles 5 and 6 of Regulation No 3, that Regulation replaces, in respect of the persons covered by it, social security Conventions concluded between Member States which are not mentioned in Article 6 or in Annex D thereof, even if the application of the Conventions is more advantageous to persons entitled to benefits than the said Regulation.

9. The same answer must be given to the third question, as Articles 6 and 7 of Council Regulation No 1408/71, by virtue of their content and their purpose, are analagous in their scope and effect to Articles 5 and 6 of Regulation No 3.

10. The second question therefore does not require an answer.

11. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as their proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On these grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to Regulation No 1408 of the Council relating to the application of social security systems to wage-earners and their families moving within the Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Centrale Raad van Beroep by order of that court dated 14 December 1972, hereby rules: