JUDGMENT OF 23. 9. 1982 — CASE 275/81 KOKS v RAAD VAN ARBEID

In Case 275/81 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 action pending before that court between

THE COURT (Second Chamber) composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges, Advocate General : P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

III — Answer to the question put by the Court

IV — Oral procedure

Decision

Costs

I —. Facts and written procedure

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

1. The Road van Arbeid observes that by adopting the Old-Age Law, the legislature intended to establish an old-age pension scheme for the entire population, that is to say for everyone residing in the country. However, it points out, it was also considered necessary to extend the insurance scheme to nonresidents who were pursuing activities as employed persons in the Netherlands and thus, in keeping with a rule generally recognized at international level, an employed person is insured under the legislation of the country in which he works. It adds that the effect of the above rule has been however to exclude from the scope of the general old-age pension scheme all residents who pursue activities as employed persons in another country and are on that account insured in that country and that, in such a case, the spouses of such persons are also excluded from the insurance scheme. The Netherlands legislature took the view that the workers concerned and the members of their family were fully covered by the legislation of the country in which they worked.

2. In its observations, the Commission recalls the facts as set out in the order making the reference and oudines the Netherlands legislation applicable before proceeding to analyse the relevant provisions of Community law.

III —. Answer to the question put by the Court

IV —. Oral procedure

1. By order of 29 September 1981, which was received at the Court Registry on 19 October 1981, the Centrale Raad van Beroep [Court of last instance in social security matters] referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 12 (1) of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and Article 13 (2) (a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II) p. 416) in order to determine whether certain provisions of the Netherlands legislation on pensions are compatible with Community law.

2. The question was raised in connection with a dispute between the Raad van Arbeid [Labour Council] 's-Hertogenbosch and a Netherlands national, the appellant in the main action, whose pension was reduced under the Netherlands legislation.

3. The appellant in the main action worked in the Netherlands from 1926 to 1959 mainly as a road construction worker. From 3 September 1959 to 8 August 1969 he was engaged in the same work in the Federal Republic of Germany. As from 8 August 1969, he took up employment again in the Netherlands for four months until he became incapacitated for work. He received benefits on account of his disability from Netherlands and German sources. His wife, who is also a Netherlands national, worked in the Netherlands from 1962 to 1971.

4. In 1976, on reaching the age of 65, he received on old-age pension the amount of which was however reduced by 18% under the national legislation in question.

5. Under the legislation in force in the Netherlands, the Algemene Ouderdomswet [General Law on Old Age, hereinafter referred to as the Old-Age Law] of 31 May 1956 and its implementing decrees, an old-age pension is in principle granted to insured persons who have reached the age of 65. The category of insured persons includes persons residing in the Netherlands but not persons who reside there because they have a contract of employment and are accordingly insured under the provisions of foreign legislation. Similarly, a married woman residing in the Netherlands whose husband is not insured under the provisions of the relevant Netherlands legislation is not regarded as insured. In general, married women are not entitled, as such, to an old-age pension. However, a married man is entitled to a higher pension than a single person. Provision is also made for the pension to be reduced by 1% for each full calendar year in which the married male beneficiary was not insured between the ages of 15 and 65 years. The same reduction applied to the beneficiary's wife for each calendar year, within the same age bracket, in which she was not insured.

6. Under that legislation, the appellant's pension was reduced, initially by 9% of the total amount in respect of the period of nine years in which he was insured in the Federal Republic of Germany and, subsequently, by 9% of the same amount on the ground that his wife had not been insured during the same period.

7. Since the problem of the compatibility of that legislation with Community law and, in particular, with Regulations Nos 3 and 1408/71, was raised, the Centrale Raad van Beroep stayed the proceedings and referred to the Court the following question:

8. It is necessary to observe that Article 12 of Regulation No 3 as well as Article 13 (2) (a) of Regulation No 1408/71 both lay down, in virtually identical terms, the principle that a worker is subject throughout the period of his employment to the legislation of the Member State in whose territory he works.

9. However, the Court has already pointed out, in its judgment of 24 April 1980 in Case 110/79 Coonan [1980] ECR 1445, that it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme.

10. It must however be emphasized that although the Member States are at liberty to adopt rules in respect of questions relating to social security schemes, they are none the less under an obligation to comply with the provisions of Community law in force.

11. Apart from Council Directive No 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979, L 6 p. 24) which allows the Member States a period of six years in which to implement the necessary provisions, there is no rule of Community law precluding the Member States from making the right of either spouse to derive benefits under a social security scheme dependent on the affiliation of the other spouse to the same scheme.

12. Consequently, under Community law as it stands at present, a national provision of a Member State which provides that a married woman residing in that Member State whose husband is not insured there for the purposes of an old-age pension because he is so insured under the legislation of another Member State, is not insured for those purposes eitherį if she has resided in the territory of the first-mentioned Member Sute and has been employed there, is not incompatible with the provisions of Community law in force.

13. 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 national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Second Chamber), in answer to the questions submitted to it by the Centrale Raad van Beroep by order of 29 September 1981, hereby rules: