Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By orders dated 24 January and 25 September 1984, which were received at the Court on 29 November 1984, the Centrale Raad van Beroep requests the Court to interpret certain provisions of the Community rules on social security as they apply to the Netherlands old-age insurance scheme. The orders were made in proceedings between the Sociale Verzekeringsbank [hereinafter referred to as the Verzekeringsbank], the national insurance authority, and Mr L. A. Spruyt, a Netherlands national, concerning the amount of the old-age pension to which Mr Spruyt is entitled.

2. In the first place an outline should be given of all the legislation concerned in the main proceedings. According to the national provisions contained in the Algemene Ouderdomswet [General Law on Old-Age, hereinafter referred to as the Old-Age Law], any person who resides in the Netherlands is entitled to a pension, whether or not he pursues an activity as an employed person. The amount of the pension is calculated by reference to the number of years during which the person concerned was insured; the full pension is payable on completion of 50 years' insurance between the ages of 15 and 65.

3. It is clear that since the aforementioned benefits are based on the criteria of nationality and residence they are not available to migrant workers. In order to avoid such discrimination the Council included in the Community social security scheme ad hoc provisions which also take account of the particular changes in the pension scheme brought about by marriage under Netherlands law.

4. I turn now to the facts of the case. On 15 November 1979 Mr Spruyt, a Netherlands national, attained the age of 65 and therefore became entitled to an old-age pension. His wife, who is also of Netherlands nationality and who was born on 19 October 1920, has never pursued an activity as an employed person. They were married on 16 November 1944 and resided in the Netherlands until 4 November 1973, since which time they have been living in Belgium.

5. In the procedure before the Court, written observations were submitted by Mr Spruyt, the Government of the Kingdom of the Netherlands, the Verzekeringsbank and the Commission of the European Communities. Instead of summarizing those submissions (which for the most part, agree that both questions should be answered in the negative), it seems to me more useful to consider the doubts expressed by the Centrale Raad van Beroep. Those doubts relate to the fact that Mrs Spruyt, merely by accompanying her husband to Belgium before she reached pensionable age, lost the benefit of having the period between her 15th birthday and the date of her marriage taken into account although she was resident in the Netherlands during that time. It is true that the same does not apply to Mr Spruyt because, by virtue of Point 2 (a) and (f) of Part I of Annex VI, he retains the benefits accorded by the national scheme even if he moves to another State, since he is an employed person within the meaning of Article 1 of Regulation No 1408/71 and a recipient of an old-age pension. However, since his pension is reduced by 1% in respect of each year during which his wife was not insured, he can be said to suffer in reality from such an interpretation of the provisions of the annex.

6. I would state immediately that I share the conclusion reached by the Centrale Raad van Beroep; I am, however, doubtful about the way in which it arrived at that conclusion.

7. On the basis of the foregoing considerations, I propose that the questions referred to the Court of Justice by the Centrale Raad van Beroep by orders of 24 January and 25 September 1984 in the proceedings before that court between Mr L. A. Spruyt and the Sociale Verzekeringsbank should be answered as follows:

1 Translated from the Italian.