Report for the Hearing in Case C-282/91

I — Facts and procedure

1. In the Netherlands, the Algemene Ouderdomswet (General Law on Old-Age Insurance, hereinafter the AOW) of 31 May 1956 (Staatsblad, 281), which entered into force on 1 January 1957, established for the benefit of residents and nonresidents liable to tax on income from employment in the Netherlands a general old-age pension scheme under which pension rights are acquired on the basis of the insurance periods completed.

2. Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation No 2332/89 of 18 July 1989, provides in section 2(a) of Part J (Netherlands) of Annex VI, headed Application of Netherlands legislation on general old-age insurance (AOW), as follows:

3. Mr A. de Wit is a Netherlands national who resided in the Netherlands until 20 November 1945. On that date, he became a public servant at the War Ministry, and subsequently at the Ministry of Foreign Affairs; he went on to occupy a number of posts outside the Netherlands. On 27 October 1947 his name was officially deleted from the population register for the municipality of Waddinxveen.

4. The judgment of the Hoge Raad der Nederlanden was lodged at the Court Registry on 6 November 1991.

5. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 7 January 1992 by Mr de Wit, on 24 February 1992 by the Commission of the European Communities, represented by B. J. Drijber, of its Legal Service, acting as Agent, by the Bestuur van de Sociale Verzekeringsbank, Amstelveen, the appellant, represented by E. H. Pijnacker Hordijk, of the Amsterdam Bar, and by the Government of the Kingdom of the Netherlands, represented by B. R. Bot, Secretary General at the Ministry of Foreign Affairs.

6. On hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry.

7. By decision of 17 June 1992, the Court assigned the case to the Sixth Chamber pursuant to Article 95(1) and (2) of the Rules of Procedure.

II — Written observations submitted by the parties

1. The SVB points out first of all that it is not disputed in the main proceedings that, as he went to live in Ireland at the age of 58, Mr de Wit does not fulfil the conditions laid down by national law for entitlement to the transitional benefits provided for by the AOW. However, although Mr de Wit could claim those benefits pursuant to Annex VI of Regulation No 1408/71 in respect of the period from 10 June 1935 (the date on which he reached the age of 15) to 27 October 1947 (the date from which he ceased to reside and work in the Netherlands), he could no longer do so for the period from 27 October 1947 to 1 January 1957 since section 2(a) of Part J of the annex in question provides that periods prior to 1 January 1957 are not to be treated as insurance periods unless, during those periods, the person concerned resided in the Netherlands between the ages of 15 and 65 or worked in the Netherlands for an employer established in that country.

2. Mr de Wit merely points out that he objected to the SVB's decision not to take into consideration in calculating his pension the years from 1947 to 1957 for the following reasons:

3. The Netherknds Government points out first of all that, in its judgment in Spruyt, the Court has already stated that section 2 of Part J of Annex VI to Regulation No 1408/71, which was drafted with the AOW specifically in mind and was designed to supplement that law, must be interpreted in the light of the scheme and provisions of that national legislation. It considers, however, that that reasoning cannot be applied without qualification to the present case which is concerned with a different problem from that which arose in the Spruyt case. It also emphasizes that (the former) Article 3(4) of the AOW was not yet in force prior to 1957 and had already been abolished when it was necessary to determine Mr de Wit's entitlement to an old-age pension.

4. The Commission considers that the question raises two different issues: whether a Member State can interpret the provisions of Annex VI to Regulation No 1408/71 from the point of view of its national legislation, and if not, whether, in a case such as this, the person concerned is entitled to claim the benefit of the rights conferred by the provisions of that annex.

1 Language of the case: Dutch.