C-51/73

1. The phrase 'by virtue of the legis­ of Member States, have been taken lation of one or more Member into account. States' in Article 10 (1) of Regulation No 3 and the phrase '... under the 2. The protection afforded by Article 10 legislation of one or more Member (1) of Regulations Nos 3 and 1408/71 States' in Article 10 (1) of Regulation extends to benefits arising from No 1408/71 refer to national laws particular schemes under national law after the effects of community law, which are given effect by increasing and particularly the principle of the value of the payment to be made non-discrimination between nationals to the beneficiary.

In Case 51/73

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

BESTUUR DER Sociale VERZEKERINGSBANK, AMSTERDAM,

and

B. SMIEJA, resident in Essen-Küpferdreh (FRG),

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure that in which the institution responsible for payment is situated. The facts and procedure may be summarized as follows: (b) From 1 January 1957 the sickness and old-age pension scheme for 1. (a) Regulation No 3, Article 8, and employed persons in the Netherlands Regulation No 1408/71, Article 3 (1), was replaced, insofar as old-age pensions provide that the persons concerned shall are concerned, by a general old-age enjoy the benefits of the social security pension scheme covering all residents. legislation of any Member State under Since this legislation (hereinafter referred the same conditions as the nationals of to as the AOW) extends old-age pension that State. benefits to persons other than employed Both in Regulation No 3 and in persons, and the pension rates for Regulation No 1408/71, Article 10 (1) employed persons under the sickness and provides, in effect, that cash benefits, old-age pension scheme were fairly low, pensions, and other financial grants the AOW contains transitional provi­ acquired under the legislation of one or sions whereby anyone who had attained more Member States shall not be subject the age of 15 years but not 65 years on 1 to any reduction, etc., by reason of the January 1957 shall be deemed to have fact that the recipient resides in the been insured for the period between the territory of a Member State other than date on which he completed his 15th

SOCIALE VERZEKERINGSBANK v SMIEJA

by it. The Bank, however, believing that there was some doubt as to the interpretation 2. Miss Smieja, a German national of Articles 8 and 10 of Regulation No 3 resident in the Federal Republic of of the Council, appealed against the Germany when she attained the age of Raad's decision to the Centrale Raad 65 years, and still resident there, was van Beroep of Utrecht. granted, by a decision of the Sociale Verzekeringsbank of Amsterdam (herein

available under the AOW. The Bank had 1. (a) Do the words 'the social security legislation of any Member State' determined the amount of the pension in in Article 8 of Regulation No 3, accordance with the provisions of the or the words 'the legislation of Convention on the application of the any Member State' in Article 3 Dutch General Old-Age Law concluded (1) of Regulation No 1408/71, on 9 March 1961 by the Netherlands mean the national legislation as it and Germany on the basis of Article 7 of is after the rules of Community Regulation No 3 of the Council.

JUDGMENT OF 7. 11. 1973 — CASE 51/73

States. (c) In other words, do Articles 8 and 10 (1) of Regulation No 3, or Therefore, according to the Raad, Miss Articles 3 (1) and 10 (1) of Smieja cannot enjoy the transitional Regulation No 1408/71, comple benefits conferred by Dutch law insofar ment each other in such a way as these do not derive from the 1961 that these provisions considered German-Dutch Convention. together broaden the require ments of nationality and (b) The Sociale Verzekeringsbank residence into the citizenship and remarks that the fact that Miss Smieja territory of the Community, or had been insured between the ages of 59 are these provisions entirely and 65, and consequently, if the national assimilation rules were taken into independent of each other? account, that her residence in Germany

The national laws alone do not permit her 4. The arguments apparent from the nationality and residence to be grounds given in the order made by the assimilated to Dutch nationality and Centrale Raad and the accompanying residence in the Netherlands. But taking documents may be summarized as follows: into account the provisions of Regulation No 3, the Bank considers that (a) The Raad van Beroep of Miss Smieja is entitled to the transitional Amsterdam, in its judgment of 4 April benefits under the AOW.

Neverthe from the objectives set out in Article 51 less, the Raad is of the opinion that, in of the EEC Treaty which formed the order to take advantage of the basis of the Regulation, and which transitional benefits, the applicant must provides for the measures to be taken in also meet the requirements applicable to the sphere of social security which are Dutch nationals under Article 44 of the necessary in order to achieve freedom of AOW. They are not met by Miss Smieja. movement for workers. Article 51 (b) of The Raad considers, inter alia, that it the Treaty employs the term 'resident', would be a mistake to assume, for the not the phrase 'who establish their purposes of Article 10 of Regulation No residence', and the same is so in Article

10 (1) of the Regulation, which uses the sion of the European Communities by its word 'resides' and not the phrase 'has legal adviser, Mr R. C. Fischer, assisted established his residence' if the residence by Miss M.-J. Jonczy, of the legal requirement contained in the national service. Miss Smieja wrote to the Court laws is an essential constituent of the on a number of occasions giving right to benefits, or a condition imposed information concerning her residence in for payment of them, yet that is not the Netherlands. considered by the Bank to be a After hearing the report of the determining factor in the interpretation Judge-Rapporteur, and the opinion of the of Article 10. Consequently it does not Advocate-General, the Court decided to think it unreasonable to suppose that the commence oral proceedings without any words 'cash benefits, .

ty law. The Bank cites Articles 11 (2), 28 submitted to the Court (1), and 31 (1) and (7) a, of the Regulation in support of this claim. It The observations submitted to the Court refers in this matter to the judgment may be summarized as follows: given by the Court on 10 December 1969 in Case 34/69, (Caisse d'Assurance The Dutch Government claims that the Vieillesse v Duffy, Rec. 1969, p. 597). term 'legislation of any Member State' It is the Bank's opinion that the same which appears in the Articles cited in the arguments apply to the interpretation of questions must be understood to mean

5. The order of the Centrale Raad van into account in applying Article 10 of Beroep was registered at the Registry of both Regulations (which governs the the Court on 19 March 1973. export of benefits acquired under the In accordance with Article 20 of the legislation of a Member State). There is Protocol on the Statute of the Court of no support for the theory that the above Justice of the EEC, written observations provisions complement one another in were submitted on behalf of the Dutch such a way as to broaden the Government by the Ministry of Foreign requirements of nationality and Affairs and on behalf of the Commis- residence into the citizenship and

territory of the Community. If that were Convention was notified in accordance so, anyone resident in the Community with Article 54 (1) of Regulation No 3. could obtain the benefits provided for in, Although the restrictions on export of say, the legislation considered in the pensions or parts thereof payable under judgment of the Court on 22 June 1972 the transitional provisions of the AOW in Case 1/72 (Rita Frilli v Belgian State, were lifted by the repeal of the part of

Consequently, in or the periods for payment of premiums neither Regulation does Article 10 completed before 1 January 1957, under prevent application of the residence the Dutch sickness and old-age pension condition on which, under Article 44 of scheme for employed persons (i.e. the the AOW the grant of transitional former law), should be assimilated to benefits depends. periods covered by insurance under the AOW, the German-Dutch Convention The Commission of the European remained in force. Communities submits that in the absence of any express provision in a bilateral The Commission also points out that instrument or in a Community this Convention was not incorporated regulation, to the effect that period of into Annex II of Regulation No 1408/71 residence completed between the ages of which covers the provisions contained in 59 and 65 years in a Member State other social security conventions not affected than the Netherlands are to be by the Regulation, and, moreover, that assimilated to periods of residence in the Annex V of the same Regulation Netherlands, workers who have includes special provisions as to the completed periods in that country prior application of the Dutch General to 1 January 1957 but who have not Old-Age Law, drawing heavily on the been resident in the Netherlands provisions of the German-Dutch

That is why the for the benefit of the persons mentioned, Netherlands and Germany concluded a any discrimination based on nationality Convention on 9 March 1961 on the occasioned by the internal legislation of basis of Article 7 of Regulation No 3, in Member States. Thus the intention of the order to permit the grant, to German authors of the regulations was that and Dutch nationals resident in the Article 8 of Regulation No 3 and the German Federal Republic, of benefits corresponding provision in Article 3 (1) under the provisions of the Dutch of Regulation No 1408/71 should not General Old-Age Law, which are not ensure for those availing themselves of dependent on contribution periods, i. e. such provisions the benefits created by

SOCIALE VERZEKERINGSBANK v SMIEJA

This condition is General Old-Age Law, fulfil the not removed by Article 10 (1) of residence condition laid down in Article Regulation No 3 and Article 10 (1) of 44 of that law, is correct. Regulation No 1408/71. As regards Question 1 (b), the The Commission would reply to the Commission points out that Article 10 questions as follows: (1) of Regulation No 3 and Article 10 (1) of Regulation No 1408/71 are designed 1. (a) The words 'the social security to remove the residence conditions for legislation of any Member States' the payment of benefits acquired under in Article 8 of Regulation No 3 the legislation of one or more Member and the words 'the legislation of States. any Member State' in Article 3 It is difficult, in the Commission's view, (1) of Regulation No 1408/71 to conceive that these Articles do not refer to national legislation as apply to benefits acquired solely by formulated. virtue of the principle of equal treatment (b) The words 'under the legislation embodied in Article 8 of Regulation No of one or more Member States' in

Regulations No 3 and No majority of those who would benefit 1408/73 have been applied. from this provision in the Regulation would be workers who were nationals, (c) The answer to this question (put not migrant workers. Another conse 'in other words') appears at (a) quence of such a theory would be to and (b). reduce to nil the practical scope of the provisions of Article 51 (a) of the Treaty 2. The word 'aquired' in Article 10 (1) whereby workers may acquire the right of Regulations No 3 and No 1408/71 to benefit when periods covered by means that all conditions of entitle insurance abroad are taken into account, ment imposed by internal legislation since the parties could only enjoy the are fulfilled, after taking into account, benefits thus acquired if they were where appropriate, the rules of Com resident in the territory of each of the munity law.

5 The scheme mentioned covers all persons who had not attained the age of 65 years on 1 January 1957 and were resident in the Netherlands for the six years following the completion of their fifty-ninth year, with the proviso in Article 44, however, that only those persons might benefit under Article 43 who '(a) possess Dutch nationality and (b) reside within the Kingdom'.

6 It is evident from the file that the plaintiff in the main action is, under the Dutch law governing the application of Article 43, assimilated with persons who were resident in the Netherlands for the six years following their fifty-ninth year, despite the fact that her actual residence for the determining period was in Germany.

SOCIALE VERZEKERINGSBANK v SMIEJA

7 It therefore follows that the only point in dispute is whether or not she may be considered to have fulfilled the condition of residence imposed by Article 44 of the Law.

8 By reason of her former employment in the Netherlands, the plaintiff is covered by the Community regulations for migrant workers.

9 The scope of the abovementioned regulations must therefore be examined in the light of these circumstances.

JUDGMENT OF 7. 11. 1973 — CASE 51/73

16 The rights under discussion often derive, not from national legislation alone, but from what legislation combined with the principle of non-discrimination on the basis of nationality set out in Article 8 of Regulation No 3 and Article 3 (1) of Regulation No 1408/71).

17 In the event of the party's rights deriving from the legislation of several Member States — a possibility expressly foreseen in Article 10 — payment is always made according to the provisions in the regulation.

18 It may therefore be concluded that the prase 'legislation of one or more Member States' in Article 10 (1) must be interpreted as embracing the relevant provisions of Community law.

19 Secondly, an interpretation of the word 'acquired' in Article 10 (1) Regulations No 3 and No 1408/71 is requested.

20 As already stated, the purpose of this provision is to promote the free move­ ment of workers, by insulating those concerned from the harmful consequences which might result when they transfer their residence from one Member State to another.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communi­ ties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 51 and 177; Having regard to Regulation No 3 of the Council on social security for migrant workers, especially Articles 8 and 10; Having regard to Regulation No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community, especially Articles 3 and 10; Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, 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 8 March 1973, hereby rules:

1. The phrase 'under the legislation of one or more Member States' in Article 10 (1) of Regulation No 3, and the phrase '... under the legislation of one or more Member States' in Article 10 (1) of Regula­ tion No 1408/71 mean national legislation as it is after the rules of Community law, in particular the principle of non-discrimination between nationals of the Member States, have been incorporated in it.

2. The word 'acquired' in Article 10 (1) of Regulations No 3 and No 1408/­ 71 is to be interpreted as meaning that the protection ensured by that provision extends to the benefits arising from particular schemes

Registrar President

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI

DELIVERED ON 24 OCTOBER 1973 1

Mr President, his 15th year and the entry into force of Members of the Court, the Law. However, Article 44 of the same Law The national court which has referred to lays down that only persons of Dutch us the questions of interpretation in the nationality and who, moreover, have present proceedings has to decide their residence in the Kingdom are whether a German citizen, resident in the entitled to the benefits provided under Article 43. Federal Republic at the time when she attained the age of 65 years, and still The Dutch insurance institution ('Sociale residing there, has, under Community Verzekeringsbank'), which at first denied legislation on social security for migrant that Article 43 was applicable to Miss workers, a right to benefit under the Smieja, subsequently changed its mind, transitional provisions of Article 43 of having reached the conclusion that, the Netherlands General Old-age under Articles 8 and 10 of Regulation Insurance Law (AOW) of 31 May 1956. No 3 of the Council, she was entitled to Under this enactment, anyone who, benefit under the said transitional before Article 6 of the said Law came provisions. into force, was over 15 years of age but On the other hand, the Raad van Beroep under 65, and who, with or without of Amsterdam has refused to accept that interruption, had resided in the Kingdom Article 43 applies to her and, in appeal of the Netherlands for six years after proceedings instituted by the insurance completion of his 59th year, is for the institution against this refusal, the purposes of the AOW treated as having Centrale Raad van Beroep, acting under been insured during the period between Article 177 of the EEC Treaty, referred