C-82/72

Reference to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep at Utrecht for a preliminary ruling in the action pending before that court between

C. J. WALDER, permanently resident in Brussels,

and

BESTUUR DER SOCIALE VERZEKERINGSBANK, having its seat in Amsterdam,

on the interpretation of Council Regulation No 3 'concerning social security for migrant workers' and of Council Regulation No 1408 of 14 June 1971, 'relating to the application of social security systems to wage-earners and their families moving within the Community",

1 — Language of the Case: Dutch.

Issues of fact and of law

I — Facts and procedure entitled him to a pension under the AOW provided that he could establish The facts and procedure may be as insurance periods within the meaning summarized as follows: of that Law 'contribution periods or premium payment periods completed 1. By a decision dated 30 March 1972, before 1 January 1957, under the the Sociale Verzekeringsbank in legislation relating to the invalidity, old Amsterdam granted to Mr. C. J. Walder, age and survivors' insurance scheme for a Dutch national, born in 1905 and workers operating in the Netherlands'. permanently resident in Belgium, an Mr Walder having completed before 1 old-age pension, commencing from 1 January 1957, a period of 75 weeks, January 1970, at the rate of 4 % of the rounded up to two years, his old-age old-age pension which an unmarried pension was fixed by the Sociale beneficiary could receive under the Verzekeringsbank at the amount 'algemene Ouderdomswet' (General abovementioned, having regard to Old-Age Insurance Law) (hereinafter Article 10 (4) of the AOW. called 'AOW'). In his appeal against this decision to the In giving its reasons for its decision, the Raad van Beroep of Amsterdam, Mr Sociale Verzekeringsbank found that Mr Walder claimed that he would be Walder, although permanently resident entitled to a higher pension (33.6 % of in Belgium since 1954 and despite the the pension due to a married beneficiary) fact that neither he nor his wife had if, instead of the abovementioned been insured under the AOW, benefited Regulation No 3, the Convention of 29 as a worker within the meaning of August 1947 (as amended on 4 Article 4 (1) of Council Regulation No 3 November 1957) between Belgium and concerning social security for migrant the Netherlands, relating to the workers, from the provisions of Articles application of the national social 27 and 28, taken together with Annex G, insurance legislation of the two III, B (a) of the same Regulation, which countries, were applied. According to

that Convention and to the agreement advisers Robert C. Fischer and Jan relating to it, not only would there be Gijssels, acting as agents, assisted by taken into account periods of Miss Marie-Jose Jonczy, submitted employment in the Netherlands written observations in accordance with (Regulation No 3, Annex G, III, B (a)) the provisions of Article 20 of the but also periods of residence in the Protocol on the Statute of the Court of Netherlands on the part of the Justice. beneficiary and his wife, if any, After hearing the report of the Judge completed before 1 January 1957. Rapporteur and the Advocate-General, The Raad van Beroep having dismissed the Court decided to open the oral this application on 29 May 1972, Mr procedure without any preparatory Walder lodged an appeal with the inquiry. Centrale Raad van Beroep in Utrecht. The oral observations of the That court, by an order dated 14 Commission were made at the hearing December 1972, and lodged with the on 8 May 1973. Court Registry on 21 December 1972, decided to suspend judgment and refer The Sociale Verzekeringsbank lodged the following questions to the Court for observations for the purposes of the oral a preliminary ruling: procedure on 26 April 1973, stating that it was not in a position to appear at the 'How are the provisions contained in public hearing on 8 May 1973. Articles 5 and 6 and in Annex D of The Advocate-General presented his Regulation No 3 to be interpreted? opinion at the hearing on 23 May 1973. (a) as regards persons covered by Regulation No 3, do the provisions of that Regulation replace the provisions of social security II — Observations submitted Conventions concluded between by the Commission and Member States which are not by the Sociale Verzeke­ mentioned in Article 6 (1) (a) and ringsbank (b), 6 (2) (a) and (b) or Annex D, even when the application of the The observations submitted by the Conventions is more favourable to Commission and by the Sociale persons entitled to social security Verzekeringsbank may be summarized as benefits than the application of the follows: abovementioned Regulation? (b) if not, what are the criteria for A — The Commission explains firstly ascertaining which of the two pieces the origin of the legislation material to of legislation, the Convention or the the present case. It recalls that the Regulation, would produce a more invalidity and old-age insurance scheme favourable result in a particular for wage-earners was replaced in the case? In such a case, must there be Netherlands, as from 1 January 1957, by taken into consideration what is a general old-age insurance scheme ultimately paid de facto to the applicable to all residents (AOW). beneficiary in the other Member Since the level of pensions paid under States? the invalidity and old-age insurance scheme was low, the AOW laid down (c) In this connection, how are Articles 6 and 7 and Annex II of Regulation transitional provisions under which — No 1408/71 to be interpreted?' according to the statements supplied by the Sociale Verzekeringsbank — periods 2. The Commission of the European prior to 1 January 1957 would be Communities, represented by its legal considered, commencing with the 15th

year of age and ending with the said system of calculation under the AOW date, as insurance periods, no matter in took the place of the calculation under what country the person concerned had the invalidity and old-age insurance resided during these periods. scheme for wage-earners. In general the advantage of these Finally, Council Regulation No 1408/71 provisions accrued to nationals of the (OJ L 149 of 1971) which was made in Netherlands provided that the persons the context of an overall revision of concerned had resided, if only Regulations 3 and 4, incorporated in its intermittently, for six years in the Annex V, F, 2, several provisions of the Netherlands after having attained the Convention between Belgium and the

Since the application of this system were entitled. Referring, on this point, to entailed administrative and legal the first question the Commission complications, the Belgian and Dutch examines Article 5 (a) and Article governments proposed in May 1962, that 6 (2) (e) of Regulation No 3. Annex D of Regulation No 3 should be amended. The provisions of the In its opinion these Articles are perfectly clear and leave no doubt as to their Convention between Belgium and the

WALDER v SOCIALE VERZEKERINGSBANK

and third questions should be answered considers that the second question does as follows: not require an answer. 'Regulation No 3 lays down in B — In a statement submitted for the mandatory form the principle by which it replaces, within the area of its purposes of the oral procedure, the application, the bilateral Conventions Sociale Verzekeringsbank replies, firstly, concluded between Member States. The to the wirtten observations of the only exception to this principle concerns Commission by explaining the scope of the provisions of the bilateral the transitional system of the AOW and Conventions mentioned in Annex D of by pointing out that in any case the Regulation No 3. However, the bilateral Convention between Belgium Regulation establishes no criteria for and the Netherlands remained in force in listing such provisions in the Annex nor its entirety as regards persons not does it impose any obligation to do so covered by Regulations Nos 3 and on Member States. 1408/71. It further observes that, having The same applies to Regulation No regard to Articles 7 and 48 (2) of the 1408/71, Article 6 of which establishes EEC Treaty and to Article 8 of the same principle and Article 7 of Regulation No 3, it perhaps ought to be which provides the same exception as conceded that nationals of Member regards the provisions of the social States other than the Netherlands and security Conventions mentioned in Belgium should also benefit from the Annex II of the Regulation.' advantages resulting from the said The answer to the first question being in bilateral Convention, (now see also the affirmative, the Commission Article 3 (3) of Regulation No 1408/71).

'Save as otherwise expressly stated herein, the provisions of this Regulation shall, in respect of persons covered by the Regulation, replace the provisions of:

(a) the social security Conventions concluded between two or more Member States exclusively and the supplementary agreements thereto;'

5 Article 6 (2) of that Regulation states:

'The provisions of this Regulation notwithstanding, the following shall continue to apply:

(e) such other provisions of social security Conventions as are listed in Annex D to this Regulation.'

6 It is clear from these provisions that the principle that the provisions of social security Conventions concluded between Member States are replaced by Regulation No 3 is mandatory in nature and does not allow of exceptions save for the cases expressly stipulated by the Regulation.

11 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as their 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 these grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers; Having regard to Regulation No 1408 of the Council relating to the application of social security systems to wage-earners and their families moving within the Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

in answer to the questions referred to it by the Centrale Raad van Beroep by order of that court dated 14 December 1972, hereby rules:

OPINION OF MR ROEMER — CASE 82/72

OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 23 MAY 1973 1

Mr President, Conventions concluded between Member States which are not Members of the Court, mentioned in Article 6 (1) (a) and The Centrale Raad van Beroep, a Dutch (b), 6 (2) (a) and (b) or Annex D, court of last resort having jurisdiction in even when the application of the Conventions is more favourable to social security matters, has, by an order dated 14 December 1972, referred the persons entitled to social security following questions for a preliminary benefits than the application of the ruling: abovementioned Regulation?

How are the provisions contained in (b) If not, what are the criteria for Articles 5 and 6 and in Annex D of ascertaining which of the two pieces Regulation No 3 to be interpreted? of legislation, the Convention or the Regulation, would produce a more (a) As regards persons covered by favourable result in a particular Regulation No 3, do the provisions case? In such a case, must there be of that Regulation replace the taken into consideration what is provisions of social security ultimately paid de facto to the

1 — Translated from the German.