Opinion of Advocate General Tesauro
Mr President,
Members of the Court,
1. The present case concerns a reference to the Court by the Centrale Raad van Beroep (Higher Social Security Court) for a preliminary ruling on the compatibility with Article 51 of the EEC Treaty of Point 4 of Annex VI, section J (Netherlands), to Council Regulation (EEC) 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 (hereinafter the regulation). The alleged incompatibility stems from the fact that the provision in question may lead to a situation where, in order to obtain invalidity benefit under the legislation of a Member State, a (previously) employed person is obliged, pursuant to national law, to meet an additional requirement (in the present case, a specified level of earned income received in the year preceding the commencement of the incapacity for work), which is inoperative for the purposes of the national legislation to which the employee in question is still deemed to be subject within the meaning of Article 45(4) of that regulation.
2. A summary of the relevant national legislation is necessary in order to understand the terms of the question.
3. Let me now turn to the relevant Community law. As I observed, Article 51 of the Treaty requires the Council to adopt such measures in the field of social security as are necessary specifically to secure for migrant workers aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries (Article 51(a)). On the basis of that article the Council adopted Regulation No 1408/71, the principal aim of which is to coordinate the various national social security legislations, so as to ensure that the freedom of movement for workers does not give rise to a situation in which workers who exercise that right are thereby placed at a disadvantage as compared with those who pursue their occupations in only one Member State.
4. I shall now turn to the facts of the case. Mr Drake is a citizen of Czechoslovakia who was naturalized in the Netherlands under the Law of 20 May 1975. Between 24 October 1968 and 5 November 1971, he completed insurance periods under the WAO scheme totalling 3 years and 12 days. However, between 30 November 1971 and 23 October 1980, he was affiliated, by reason of his employment in Germany, to the German invalidity insurance scheme. According to the order for reference, Mr Drake ceased work after the last-mentioned date and until 1 July 1984 received no benefits in lieu of remuneration. By decision of 24 March 1986, his invalidity was officially recognized by the competent authorities in Germany, who granted him as from 1 July 1984 an Erwerbsunfähigkeitsrente (pension for incapacity for work), calculated on the basis of insurance periods completed in Germany.
5. That said, it must therefore be established whether a provision (section J (4) of the Annex) which, at least at first sight, limits the scope of Article 45(4) of the regulation, is lawful and, above all, whether such a provision, to the extent that it would prevent the aggregation of the rights to which the previously employed person is entitled, is incompatible with Article 51 of the Treaty and therefore invalid.
6. Now that the terms of the question have been clarified, the first difficulty to be considered is the relationship between the relevant provisions contained in the body of the regulation and those contained in Annex VI to the regulation, particularly regarding the question whether provisions of the annex at issue may lawfully limit the scope of Article 45(4) of the regulation. In that connection, it must first be recalled that, as the Court has observed, the provisions of Regulation No 1408/71, and in particular those of Annex VI thereto, were adopted to implement Article 51 of the EEC Treaty and must be interpreted in the light of the objective of Article 51, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers. In my opinion, that statement implies that no hierarchical relationship exists between those provisions: what is important is that they should be interpreted, where possible, in conjunction with Article 51 of the Treaty and — above all — in such a way that they do not obstruct its aims.
7. Plainly, that is not true of this case. On the contrary, a person who had pursued his occupation only in the Netherlands and who had ceased work before the risk insured against materialized would find himself in the same circumstances as Mr Drake and, more generally, in the same circumstances as those who, in exercise of their right to freedom of movement, have been subject at the same time to both a scheme based on risk and a scheme based on the cumulative acquisition of rights. In other words, the situation in which Mr Drake finds himself does not stem from the fact that he exercised his right to the freedom of movement of workers as guaranteed by the Treaty, but from the fact that he had ceased work of any kind long before the incapacity for work first commenced.
8. In the same context, the national court also queries the lawfulness of introducing a further condition (subsequent to the period in which the person concerned was subject to the legislation in question), such as that concerning the receipt of a specific level of earned income during the year preceding the commencement of the incapacity for work, since a requirement of that nature is inoperative for the purposes of the national legislation to which the worker in question is deemed still to be subject within the meaning of Article 45(4) of the regulation.
9. All things considered, there seems no reason to doubt the validity of section J(4) of Annex VI to the regulation, inasmuch as the failure to obtain benefits in this case is based on objective requirements imposed by national legislation and applied equally to those who have pursued their occupation only in the Member State in question, which means, most significantly, that the consequences which ensue for workers who have exercised their right to freedom of movement do not conflict with the aims of Articles 48 to 51 of the Treaty.
10. Lastly, there remains to be considered the marginal possibility described by the Commission in its written observations, that is to say, the possibility that in certain cases even a person who was employed when the risk insured against materialized might nevertheless be ineligible for benefits under the WAO for the simple reason that he had first been declared unfit for work in a Member State where the insurance scheme in force was based on the cumulative acquisition of rights. In those circumstances, he would no longer be an employed person when his incapacity for work was recognized in the Member State where the insurance scheme in force was based on risk; a further possible consequence could be that, by failing to meet the income requirement, he might also be ineligible for benefits under the AAW.
11. In view of the foregoing I propose that the Court give the following answer to the question submitted by the Centrale Raad van Beroep, Utrecht:
1 Original language: Italian.
2 Sec the codified version contained in Council Regulation (EEC) No 2001/83 (OJ 1983 L 230. p. 6).
3 Law of 11 December 1975, Staatsblad 674.
4 Law of 18 February 1966. Staatsblad 84.
5 My emphasis.
6 See Council Regulation (EEC) No 1390/31 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 (OJ 1981 L 143, p. 1).
7 See Case C-293/8S Winter-Lutzins [1990] ECR I-1623, paragraph 13. Similarly, see Case C-282/91 De Wit [1993] ECR I-1221, paragraph 16.
8 See inter alia Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 22.
9 In that connection see, most recently, Joined Cases C-45/92 and C-46/92 Lepore and Scamuffa [1993] ECR I-6497, paragraph 21.
10 See Parascbi, cited above, paragraph 23.
11 See Case 109/76 Blottner [1977] ECR 1141, in particular paragraphs 11, 12, 15, 16 and 17. In Blottner another point at issue was the applicability of Article 45(4) (Article 45(3) at the time) of Regulation No 1408/71 to a person who had ceased working before the risk insured against materialized.
12 See Parsscbl, cited above, paragraphs 15 and 16.