JUDGMENT OF 8. 3. 1979 — CASE 129/78 SOCIALE VERZEKERINGSBANK AMSTERDAM v LOHMANN

In Case 129/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep [Court of last instance in social security matters] (Utrecht) for a preliminary ruling in the proceedings pending before that court between

THE COURT (Second Chamber) composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the observations lodged in pursuance of Article 20 of the Statute of the Court of Justice

III — Oral procedure

Decision

First Question

Second Question

Costs

I —. Facts and procedure

1. On the basis of the criterion set out in Article 1 (a) (ii) of Regulation No 1408/71 a Netherlands official is a worker and thus a former official is included in pursuance of Article 2 (1) of the same regulation amongst the persons to whom the regulation applies.

2. It remains to be decided whether the applicable national legislation comes within the matters covered by the regulation, which are described in Article 4. Laws such as the Netherlands laws relied on (the Algemene Kinderbijslagwet and the Kinderbijslagwet voor Loontrekkenden), allowing the grant of family allowances, come within the field defined by Article 4 (1) (h) of the regulation. The exclusion by Article 4 (4) of special schemes for civil servants cannot affect the first law but might possibly affect the second as Article 9 of that law states that a former official is regarded as a worker for the purposes of the law; however, this assimilation docs not appear to create a special scheme for, even though it refers to officials as such, the result is to allow them to benefit from the family allowance scheme applicable to wage-earners.

3. These two points having been thus settled, it remains to be considered whether Lohmann can base a right to family allowances on any provision of Regulation No 1408/71. This cannot be Article 10 or Article 73 (1), which deals with the case of non-resident children, or Article 75 (1) (a), which refers to Article 73 (1). There remains Article 77 which makes it possible to grant benefits for dependent children of a pensioner whatever may be the Member State on whose territory the pensioner or his children reside; but the Verzekeringsbank maintains that whilst, in that article, the term pension has the broad sense set out in Article 1 (t) of the regulation, the expression legislation has the meaning defined in Article 1 (j), which refers to the social security schemes referred to in Article 4 (1) and (2), which does not include, under paragraph (4) of that article, the special schemes for civil servants and persons treated as such; the Verzekeringsbank states, however, that Lohmann's right to a pension is based on such a scheme. It might be objected to this construction that the terms of Article 1 (j) which relate to sectors of social security and schemes for social security covered by Article 4 (1) and (2) do not mention paragraph (4) and that there is therefore a reference to a general concept of legislation in the sense of Regulation No 1408/71, that is to say, including also special schemes such as those for civil servants. There are therefore two possible solutions.

4. These observations were made having regard to the fact that the Centrale Raad van Beroep is not aware of any other provisions from which Lohmann might derive rights; it has assumed that Regulation No 1408/71 is valid and not incompatible with Article 48 (4) of the Treaty (after considering the judgment in Case 152/73) and finally it has found no provision of the Treaty with which the contested decision must be held to be incompatible.

II —. Summary of the observations lodged in pursuance of Article 20 of the Statute of the Court of Justice

A —. The Sociale Verzekeringsbank, the appellant in the main action, mentions the risk of confusion flowing from the legislative technique of placing in the same enactments provisions relating to different fields and in particular social security and insurance. In fact only the provisions actually concerning social security for wage-earners comes within the sphere of application of Regulation No 1408/71. Even if rules applicable to other groups of persons concerned are similar to those for genuine wage-earners, such persons can still not be assimilated to wage-earners and claim the benefit of the provisions of the EEC Treaty and Regulation No 1408/71. If such a position were to be accepted all Netherlands pensioners receiving benefits under a general law on old-age pensions would retroactively become workers within the meaning of the Treaty when they attained the age of 65 years because workers in the true sense of the term benefit from the same law. Thus with regard to the subject-matter of this action, Article 9 of the Kinderbijslagwet voor Loontrekkenden deems persons drawing a civil service pension to be workers within the meaning of that law. That was necessary for practical reasons of legislative technique whereas in fact benefits are financed on the one hand by the government in its capacity as the former employer of officials and on the other hand by the general insurance funds. For this reason Article 9 of the Netherlands Kinderbijslagwet voor Loontrekkenden, in so far as it considers pensioned officials as workers, is not legislation within the meaning of Article 1 (j) of Regulation No 1408/71. The scope of this expression, like that of other expressions used by the regulation to define the matters to which it applies, can be determined only in conjunction with the content of the provisions relating to the persons to whom it applies. Article 4 (4) is therefore an elucidation of the concept itself.

B —. The Commission summarizes the facts and procedure in the main proceedings and describes the Netherlands legislation applicable to this case. With regard to the scope of that legislation, although the Centrale Raad has not put any questions on the matter, the Commission emphasizes that Lohmann, who is not subject to the two laws quoted, is excluded from the category of persons to whom the regulation applies.

III —. Oral procedure

1. By an order dated 6 June 1978, which reached the Court on 9 June, the Centrale Raad van Beroep [Court of last instance in social security matters] decided to refer two questions to the Court in the context of proceedings pending before it. Those proceedings involved a Netherlands national, a former local official in the Netherlands, who since 1 May 1978 had been drawing an invalidity pension in pursuance of the Netherlands law on pensions for officials. The person concerned moved to Belgium and then asked the competent Netherlands institution to grant him family allowances in respect of a daughter who had remained in the Netherlands. He received a negative answer since according to the institution the residence condition prescribed by Article 17 (1) of the law on family allowances for children of wage-earners and persons treated as such was not fulfilled. The Centrale Raad van Beroep thereupon decided to refer the following questions to the Court:

2. Under Article 1 (j) of Regulation No 1408/71, the expression legislation means all the laws, regulations and other provisions and all other present or future implementing measures of each Member State relating to the sectors of social security and schemes for social security covered by Article 4 (1) and (2) of the said regulation. Reference is thus made to the positive definition of the material scope of the regulation.

3. The absence of an express reference in Article 1 (j) to Article 4 (4) is explained by the fact that there was no need to define negatively the material scope of the regulation by repeating the express exclusion of special schemes for civil servants and persons treated as such. Moreover that exclusion is only the logical consequence of Article 48 (4) of the Treaty which excludes employment in the public service from the application of the provisions relating to freedom of movement for workers within the Community.

4. The answer to be given to the first question put by the Centrale Raad van Beroep should therefore be that the fact that Article 1 (j) of Regulation No 1408/71 refers only to Article 4 (1) and (2) does not remove the significance of the limitation contained in paragraph (4) of that article.

5. Article 77 (2) (a) of Regulation No 1408/71 uses the concept of a pension under the legislation of one Member State only. The expression legislation used in that provision has the scope defined in Article 1 (j) of the regulation as explained in answer to the first question.

6. The answer to be given to the second question of the Centrale Raad van Beroep should therefore be that a pension under the legislation of one Member State only within the meaning of Article 77 (2) (a) of Regulation No 1408/71 does not include a pension granted under a special scheme for civil servants or persons treated as such.

7. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these 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 Centrale Raad van Beroep, the decision as to costs is a matter for that court.

On those grounds, THE COURT (Second Chamber) in answer to the questions referred to it by the Centrale Raad van Beroep (Utrecht) by orders of 13 December 1977 and 6 June 1978, hereby rules:

1 The fact that Article 1 (j) of Regulation No 1408/71 refers only to Article 4 (1) and (2) does not remove the significance of the limitation contained in paragraph (4) of that article.

2 A pension under the legislation of one Member State only within the meaning of Article 77 (2) (a) of Regulation No 1408/71 does not include a pension granted under a special scheme for civil servants or persons treated as such.