JUDGMENT OF 7. 11. 1973 — CASE 51/73 SOCIALE VERZEKERINGSBANK v SMIEJA

In Case 51/73 Reference to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep of Utrecht for a preliminary ruling in the action pending before that court between

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Written observations submitted to the Court

Grounds of judgment

Costs

I —. Facts and procedure

1. (a) Regulation No 3, Article 8, and Regulation No 1408/71, Article 3 (1), provide that the persons concerned shall enjoy the benefits of the social security legislation of any Member State under the same conditions as the nationals of that State. Both in Regulation No 3 and in Regulation No 1408/71, Article 10 (1) provides, in effect, that cash benefits, pensions, and other financial grants acquired under the legislation of one or more Member States shall not be subject to any reduction, etc., by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated. (b) From 1 January 1957 the sickness and old-age pension scheme for employed persons in the Netherlands was replaced, insofar as old-age pensions are concerned, by a general old-age pension scheme covering all residents. Since this legislation (hereinafter referred to as the AOW) extends old-age pension benefits to persons other than employed persons, and the pension rates for employed persons under the sickness and old-age pension scheme were fairly low, the AOW contains transitional provisions whereby anyone who had attained the age of 15 years but not 65 years on 1 January 1957 shall be deemed to have been insured for the period between the date on which he completed his 15th year and 1 January 1957, provided that he has been resident in the Netherlands for the six years immediately following completion of his fifty-ninth year (Article 43 of the Law). Article 44 of the Law adds that only persons of Dutch nationality who are habitually resident in the Netherlands may be accorded these benefits, although the two last requirements may, under Article 45, be waived by an administrative order, subject to the conditions to be laid down by it.

2. Miss Smieja, a German national resident in the Federal Republic of Germany when she attained the age of 65 years, and still resident there, was granted, by a decision of the Sociale Verzekeringsbank of Amsterdam (hereinafter referred to as the Bank) on 10 December 1970, an old-age pension with effect from 1 February 1970, attributable to the periods she had spent in the Netherlands, and amounting to 45.6 % of the old-age pension normally available under the AOW. The Bank had determined the amount of the pension in accordance with the provisions of the Convention on the application of the Dutch General Old-Age Law concluded on 9 March 1961 by the Netherlands and Germany on the basis of Article 7 of Regulation No 3 of the Council.

3. In an order dated 8 March 1973, the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

4. The arguments apparent from the grounds given in the order made by the Centrale Raad and the accompanying documents may be summarized as follows:

5. The order of the Centrale Raad van Beroep was registered at the Registry of the Court on 19 March 1973.

II —. Written observations submitted to the Court

1. (a) The words the social security legislation of any Member States in Article 8 of Regulation No 3 and the words the legislation of any Member State in Article 3 (1) of Regulation No 1408/71 refer to national legislation as formulated. (b) The words under the legislation of one or more Member States in Article 10 (1) of Regulation No 3, and the words … under the legislation of one or more States … in Article 10 (1) of Regulation No 1408/71 mean the national legislation as it is after Regulations No 3 and No 1408/73 have been applied. (c) The answer to this question (put in other words) appears at (a) and (b).

2. The word aquired in Article 10 (1) of Regulations No 3 and No 1408/71 means that all conditions of entitlement imposed by internal legislation are fulfilled, after taking into account, where appropriate, the rules of Community law.

1. By an order dated 8 March 1973, lodged at the Registry on 19 March 1973, the Centrale Raad van Beroep referred a number of questions concerning the interpretation of Regulations of the Council No 3 of 3 December 1958 on social security for migrant workers and No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons.

2. The substance of the questions is whether the term legislation of Member States in Articles 8 and 10 (1) of Regulation No 3, and also in Articles 3 (1) and 10 (1) of Regulation No 1408/71 is to be interpreted as meaning national legislation as it is after Community law has been incorporated into it, or national legislation as formulated, regardless of any modification of it brought about by the Regulations referred to.

3. An interpretation of the word acquired in Article 10 (1) of Regulations No 3 and No 1408/71 is also requested.

4. The order making the reference reveals that the plaintiff in the main action, of German nationality and currently resident in Germany, though formerly employed in the Netherlands, applied on reaching the age of 65 years in 1970 for the scheme set out in Article 43 of the Dutch General Old-Age Law (AOW) to be taken into account in the assessment of her old-age pension under Dutch legislation.

5. The scheme mentioned covers all persons who had not attained the age of 65 years on 1 January 1957 and were resident in the Netherlands for the six years following the completion of their fifty-ninth year, with the proviso in Article 44, however, that only those persons might benefit under Article 43 who (a) possess Dutch nationality and (b) reside within the Kingdom.

6. It is evident from the file that the plaintiff in the main action is, under the Dutch law governing the application of Article 43, assimilated with persons who were resident in the Netherlands for the six years following their fifty-ninth year, despite the fact that her actual residence for the determining period was in Germany.

7. It therefore follows that the only point in dispute is whether or not she may be considered to have fulfilled the condition of residence imposed by Article 44 of the Law.

8. By reason of her former employment in the Netherlands, the plaintiff is covered by the Community regulations for migrant workers.

9. The scope of the abovementioned regulations must therefore be examined in the light of these circumstances.

10. Article 8 of Regulation No 3, which is substantially repeated in Article 3 (1) of Regulation No 1408/71, provides that persons resident in the territory of a Member State who are covered by the Regulation shall be subject to the same obligations and enjoy the same benefits under the social security legislation of any Member State as the nationals of that State.

11. This provision is designed to ensure for workers covered by the regulations equality in the area of social security without distinction as to nationality, by prohibiting any discrimination in such matters arising from the national legislation of Member States.

12. That objective does not necessarily require that distinctions based on the parties' residence be removed, so that the Articles mentioned cannot be considered as affecting such distinctions.

13. To state this is not to exclude the possibility that distinctions based on residence may be envisaged by other provisions, such as Article 10 (1) of each of the two Regulations.

14. Article 10 (1) ensures for the recipient full entitlement to various cash benefits, pensions, and other grants acquired under the legislation of one or more Member States, even while he resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

15. The aim of this provision is to guarantee the party concerned his right to have the benefit of such payments even after taking up residence in a different Member country, e.g. his country of origin.

16. The rights under discussion often derive, not from national legislation alone, but from what legislation combined with the principle of non-discrimination on the basis of nationality set out in Article 8 of Regulation No 3 and Article 3 (1) of Regulation No 1408/71).

17. In the event of the party's rights deriving from the legislation of several Member States — a possibility expressly foreseen in Article 10 — payment is always made according to the provisions in the regulation.

18. It may therefore be concluded that the prase legislation of one or more Member States in Article 10 (1) must be interpreted as embracing the relevant provisions of Community law.

19. Secondly, an interpretation of the word acquired in Article 10 (1) Regulations No 3 and No 1408/71 is requested.

20. As already stated, the purpose of this provision is to promote the free movement of workers, by insulating those concerned from the harmful consequences which might result when they transfer their residence from one Member State to another.

21. For this, the protection given must necessarily extend to cover benefits which, while created within the confines of a particular scheme, e.g. that in Article 43 of the AOW, are given effect by increasing the value of the pension which would otherwise accrue to the recipient.

22. It follows that, to the extent that a national law such as Article 44 of the AOW imposes a condition of residence on would-be recipients of some of the benefits of the type mentioned in Article 10, the fact that the person concerned resides in the territory of a different Member State is no ground for modification, withdrawal or suspension of such benefit.

23. The costs incurred by the Dutch Government and the Commission of the European Communities which have submitted observations to the Court are not recoverable.

24. As these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those 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 Articles 51 and 177; Having regard to Regulation No 3 of the Council on social security for migrant workers, especially Articles 8 and 10; Having regard to Regulation No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community, especially Articles 3 and 10; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, 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 8 March 1973, hereby rules:

1 The phrase under the legislation of one or more Member States in Article 10 (1) of Regulation No 3, and the phrase … under the legislation of one or more Member States in Article 10 (1) of Regulation No 1408/71 mean national legislation as it is after the rules of Community law, in particular the principle of non-discrimination between nationals of the Member States, have been incorporated in it.

2 The word acquired in Article 10 (1) of Regulations No 3 and No 1408/71 is to be interpreted as meaning that the protection ensured by that provision extends to the benefits arising from particular schemes under national law which are given effect by increasing the value of the payment which would otherwise be made to the recipient.