C-129/78

In Case 129/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Centrale Raad van Beroep [Court of last instance in social security matters] (Utrecht) for a preliminary ruling in the proceedings pending before that court between

1 — Language of the Case: Dutch.

JUDGMENT OF 8. 3. 1979 — CASE 129/78

BESTUUR VAN DE SOCIALE VERZEKERINGSBANK [Management of the Central Social Security Institution], AMSTERDAM,

and

JUDGMENT

Facts and Issues

The facts of the case, the procedure and On 5 April 1974 he went to live in the observations submitted under Article Belgium. His daughter Erna, a student, 20 of the Protocol on the Statute of the who was born in 1955, continued to Court of Justice of the EEC may be reside in the Netherlands. Lohmann summarized as follows: applied for family allowances for this daughter for the second quarter of 1974 in pursuance of the Kinderbijslagwet voor Loontrekkenden [law on family I — Facts and procedure allowances for wage-earners and persons treated as such] and the Algemene Mr Lohmann, who was born in 1922, Kinderbijslagwet [general law on family was. an official of the municipality of allowances]. Vlaardingen and from 1 May 1971 he has been in receipt of an invalidity pension pursuant to the Algemene Bur­ gerlijke Pensioenwet [general law on civil pensions].

SOCIALE VERZEKERINGSBANK AMSTERDAM v LOHMANN

Consequently of 16 to 27 who continues his studies, the possibility, which was maintained in does not reside at the home of his force by the said decree, of extending parents and is maintained wholly or the status of insured person to cover almost wholly at the expense of the persons who have attained the age of 15, insured counts as three children (Article are not already insured pursuant to 8). Article 6 (1) of the Algemene Kinderbij slagwet, who live outside the territory of The Kinderbijslagwet voor Loontrek

derived, as if he were a first or second child, from the Kinderbijslagwet voor The refusal to grant family allowances Loontrekkenden and for the purposes of under the Kinderbijslagwet voor Loontrekkenden was based on the fact the right to family allowances for a child assimilated to a third child reference that Lohmann — although as a former official he was considered as a worker must be made to the Algemene Kinder for the purposes of the application of

salary in respect of work carried out within the territory, of the Kingdom) even if account is taken of the enlargement of the class of insured persons within the meaning of that law, as laid down by the Royal Decree of 18 October 1968 (Staatsblad [collection of statutes] p. 575), adopted in implementation of Article 6 (2) and (3) of the said law, as last amended by the

provisions adopted in implementation of only, in accordance with the legislation that law, this assimilation was contested of the Member State responsible for the in this case by the Verzekeringsbank on pension, is residing. the basis of the considerations underlying The Centrale Raad van Beroep, to which its first refusal, which have been set out the matter went on appeal, decided, by above. order of 13 December 1977, to use the Nor could Lohmann, according to the procedure of Article 177 and then by a decision of the Verzekeringsbank, rely supplementary order of 6 June 1978 to on Regulation No 1408/71 of the refer the following questions to the Council to claim the payment of family Court of Justice of the European Communities: allowances for his daughter Erna since he did not have the status of a worker "Does the fact that Article 1 (j) of Regu­ within the meaning of Article 73 nor was lation No 1408/71 refers only to he receiving a pension in the sense paragraphs (1) and (2) of Article 4 referred to in Article 77. signify that the limitation contained in Lohmann then brought proceedings paragraph (4) of that article does not contesting the decision of the Verzeke­ relate to the meaning of the term ringsbank rejecting his application before 'legislation' where the term is used elsewhere in the regulation? the Raad van Beroep (social security court), Amsterdam. By a judgment of In connexion with the answer to the 20 October 1976, that court stated that previous question or independently Lohmann's claims were justified and thereof, must 'pension under the quashed the disputed decision, ordering legislation of one Member State only' in the Verzekeringsbank to adopt a fresh Article 77 (2) (a) of Regulation No decision in accordance with the operative 1408/71 also include pensions payable part of the judgment. In its decision the under a special scheme for civil servants Raad van Beroep took the view that in and persons treated as such?" fact from 6 April 1974 Lohmann had no The order was received at the Court longer been insured under the Algemene Registry on 9 June 1978. Kinderbijslagwet nor could he be By a letter of 7 June 1978 the Acting considered as from that date as being President of the Centrale Raad van insured under the Kinderbijslagwet voor Beroep explained the reasons which led Loontrekkenden, but that in pursuance the court to refer those questions to the of the provisions of Regulation No Court of Justice. He puts forward four 1408/71 he must be deemed to be considerations: insured under the two Kinderbij­ slagwetten in question since he was on 1. On the basis of the criterion set out the one hand a pensioner and on the in Article 1 (a) (ii) of Regulation No other hand a resident within the EEC 1408/71 a Netherlands official is “a both on 6 April 1974 and subsequently. worker" and thus a former official is

the same regulation amongst the persons states, however, that Lohmann's right to to whom the regulation applies. a pension is based on such a scheme. It might be objected to this construction 2. It remains to be decided whether the that the terms of Article 1 (j) which applicable national legislation comes relate to "sectors of social security and within the matters covered by the regu schemes for social security covered by lation, which are described in Article 4. Article 4 (1) and (2)” do not mention Laws such as the Netherlands laws relied paragraph (4) and that there is therefore on (the Algemene Kinderbijslagwet and a reference to a general concept of the Kinderbijslagwet voor Loontrek "legislation" in the sense of Regulation kenden), allowing the grant of family No 1408/71, that is to say, including allowances, come within the field defined also special schemes such as those for

3. These two points having been thus settled, it remains to be considered The procedure followed the normal whether Lohmann can base a right to course. In pursuance of Article 20 of the family allowances on any provision of Statute of the Court of Justice of the EEC observations were submitted on Regulation No 1408/71. This cannot be Article 10 or Article 73 (1), which deals behalf of the Sociale Verzekeringsbank with the case of non-resident children, or by its President Director, K. Weernink, on behalf of the Commission of the Article 75 (1) (a), which refers to Article 73 (1).

JUDGMENT OF 8. 3. 1979 — CASE 129/78

provisions actually concerning social As regards the second question, it too security for wage-earners comes within should be answered in the negative. the sphere of application of Regulation Although the expression "pensions" No 1408/71. Even if rules applicable to contained in Article 1 (t) must be taken other groups of persons concerned are in a very broad sense having regard to similar to those for genuine wage- case-law, it must nevertheless be earners, such persons can still not be admitted that what is involved is a assimilated to wage-earners and claim pension in the field of social security the benefit of the provisions of the EEC within the meaning of Article 51 of the Treaty and Regulation No 1408/71. If Treaty and not mere benefits based on such a position were to be accepted all private or administrative law.

In action, Article 9 of the Kinderbijslagwet general special schemes for civil servants voor Loontrekkenden deems persons constitute in the various Member States drawing a civil service pension to be such a specialized field that it is under "workers" within the meaning of that standable that they have not been law. That was necessary for practical considered in a regulation of a general reasons of legislative technique whereas character such as Regulation No in fact benefits are financed on the one 1408/71 and that they do not come hand by the government in its capacity as the former employer of officials and on the other hand by the general insurance

SOCIALE VERZEKERINGSBANK AMSTERDAM v LOHMANN

within its scope either with regard to In conclusion the Commission is of the pensions or their consequences — as in opinion that the answers to be given to this case family allowances. In support of the questions put by the Centrale Raad its views' the Verzekeringsbank quotes van Beroep should be answered as four decisions of the Court of Justice follows: (33/65, 61/65, 14/72 and 51/73). "1. The expression 'legislation' defined B — The Commission summarizes the in Article 1 (j) of Regulation (EEC) facts and procedure in the main No 1408/71 of the Council of proceedings and describes the Netherlands legislation applicable to this 14 June 1971 does not include schemes which are excluded from case. With regard to the scope of that legislation, although the Centrale Raad the scope of the said regulation in has not put any questions on the matter, pursuance of Article 4. the Commission emphasizes that 2. In Article 77 (2) (a) of the said regu­ Lohmann, who is not subject to the two laws quoted, is excluded from the lation the expression 'pension under category of persons to whom the regu­ the legislation of one Member State lation applies. only' is not to be taken as including With regard to the questions referred to a pension under a special scheme for the Court the Commission states that the civil servants.” expression "legislation" refers at the most to rules coming within the material scope of Regulation 1408/71 as defined III — Oral procedure by Article 4 (1) to (4) of that regulation. As special schemes for civil servants are excluded by paragraph (4) a person The hearing took place on 7 December entitled to a pension to which the regu­ 1978. The Commission developed the lation is not applicable cannot rely on arguments put forward in its written Article 77 (2) (a) to deduce the existence observations. of rights to which he is entitled. Moreover the regulation itself contains The Advocate General delivered his no provision which directly creates rights opinion at the hearing on 15 February to family allowances. 1979.

First Question

2 Under Article 1 (j) of Regulation No 1408/71, the expression "legislation" means all the laws, regulations and other provisions and all other present or future implementing measures of each Member State relating to the sectors of social security and schemes for social security covered by Article 4 (1) and (2) of the said regulation. Reference is thus made to the positive definition of the material scope of the regulation.

3 The absence of an express reference in Article 1 (j) to Article 4 (4) is explained by the fact that there was no need to define negatively the material scope of the regulation by repeating the express exclusion of special schemes for civil servants and persons treated as such. Moreover that exclusion is only the logical consequence of Article 48 (4) of the Treaty which excludes "employment in the public service" from the application of the provisions relating to freedom of movement for workers within the Community.

SOCIALE VERZEKERINGSBANK AMSTERDAM v LOHMANN

4 The answer to be given to the first question put by the Centrale Raad van Beroep should therefore be that the fact that Article 1 (j) of Regulation No 1408/71 refers only to Article 4 (1) and (2) does not remove the significance of the limitation contained in paragraph (4) of that article.

Second Question

THE COURT (Second Chamber)

in answer to the questions referred to it by the Centrale Raad van Beroep (Utrecht) by orders of 13 December 1977 and 6 June 1978, hereby rules:

1. The fact that Article 1 (j) of Regulation No 1408/71 refers only to Article 4 (1) and (2) does not remove the significance of the limitation contained in paragraph (4) of that article.

2. A “pension under the legislation of one Member State only" within the meaning of Article 77 (2) (a) of Regulation No 1408/71 does not include a pension granted under a special scheme for civil servants or persons treated as such.

Mackenzie Stuart Pescatore Touffait

Delivered in open court in Luxembourg on 8 March 1979.