C-275/81

on the interpretation of Article 12 (1) of Regulation N o 3 of the Council of 25 September 1958 concerning social security for migrant workers and Article 13 (2) (a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community,

T H E C O U R T (Second Chamber)

composed of: O. Due, President of Chamber, A. Chloros and F. Grévisse, Judges,

Advocate General: P. VerLoren van Themaat Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

January 1911 and is of Netherlands natio- to Article 10 (6), now Article 10 (5), of nality, worked in the Netherlands from the Old-Age Law. In the case of a 1926 to 1959 mainly as a road construc- married couple, usually it is only the tion worker. From 3 September 1959 to husband who is entitled to an old-age 8 August 1969 he was engaged in the pension, on reaching the age of 65, in same work in the Federal Republic of principle equal to the social minimum for Germany and became affiliated to the married persons, in accordance with German Rentenversicherung [Pension Anicie 7 of the Old-Age Law. By virtue Insurance Scheme] in December 1959. of the provisions of Anicie 10 (2) (a) and (b) of the Old-Age Law, the reduction then amounts to 1% for each year in On 8 August 1969, Mr Koks returned to which the husband was uninsured, and the Netherlands to work. However, his 1% for each year in which the wife was employment relationship in Germany uninsured. continued to exist and contributions were paid to the German social security scheme until 20 August 1969. In addition, the law in question provides for notional years of insurance for the period before 1 January 1957, the date On 1 December 1969, he became inca- on which it entered into force. On pacitated for work and accordingly certain conditions, persons who before received benefits for that incapacity from 1 January 1957 had reached the age of German and Netherlands sources. 15 but not the age of 65 are deemed to have been insured during the period before the date on which they completed Mr Koks's wife, who was born on their 15th year and 1 January 1957, as 2 January 1912 and is also of provided for by Anieles 43 and 44 of Netherlands nationality, worked in the that Law. Netherlands from 10 September 1962 to 12 March 1971 inclusive. Mr Koks, the appellant in the main action and his wife satisfy the conditions On 6 October 1975, Mr Koks applied for the award (in full) of the notional for an old-age pension under the vears of insurance before 1 January Netherlands Algemene Ouderdomswet 1957. [General Law on Old Age, hereinafter referred to as "the Old-Age Law"]. Accordingly, it is only for the years sub- sequent to 1 January 1957 that it is In accordance with the provisions of the necessary to ascertain for which periods Old-Age Law, on reaching the age of 65 Mr Koks and his wife were not insured a (single) person receives in principle a under the Old-Age Law. full pension which, however, under Anicie IC (1) of thai Law, is reduced by 2°/: for each calendar year in which the According to Article 2 (1) (a) of the person was not insured during the period Royal Decree of 18 October 1968 laying between his 15th and 65th birthdays. The down a general administrative measure uninsured calendar years, or parts within the meaning of Anicie 6 (2) and thereof, are added together and any (3) of the Old-Age Law concerning the remaining paa of a calendar year is extension and restriction of the number disregarded for the purposes of the of persons insured, "residents who are reduction pursuant to the Order of the emploved outside the Netherlands and Minister of Social Affairs and Public bv virtue of that employment are insured Health of 17 June 1957, issued pursuant under legislation on old-age and

survivors' pensions and family allowances N o 3, she should be regarded as having in force 'm A e country in which they been insured under the Old-Age Law work" and are treated as insured from 10 September 1962 to 1 September persons. 1969. She would then be considered as having been uninsured from 1 December 1959 to Î0 September 1962, with the Earlier royal decrees contain similar result that the percentage deductible in provisions. her case would be 2 % and not 9 % (the percentage deductible in her husband's According to the case-law of the case). Centrale Raad van Beroep [Court of last instance in social security matters], those provisions are to be interpreted as In the dispute between Mr Koks and the meaning that a claimant is treated as Raad van Arbeid [Labour Council], the uninsured under the Old-Age Law Centrale Raad van Beroep takes the view during the whole (calendar) months in that although the case-law of the Court which he was insured in another country. of Justice, as set out in the judgment of Therefore the appellant in the main the Court of 24 April 1980 in Case action must be treated as uninsured 110/79 Coon&n [ECR] 1445, is to the under the Old-Age Law for the period effect that it is for the legislature of each from Î December 1959 to Î September Member State to lay down the 1969, that is to say the whole months conditions creating the right or the during which he was insured under the obligation to become affiliated to a social German scheme, namely nine years and security scheme or to a particular branch nine months. thereof", a different view might be taken in this case since it concerns provisions of Community law and of national law Moreover, under Article 2 (1) (first part which have as their purpose to define the and subparagraph (i)) of the aforesaid scope of national social security schemes Royal Decree of 18 October 1968 and with respect to one another. the corresponding provisions of earlier royal decrees, "a married woman resid- ing in the Kingdom of the Netherlands Against that background and with a view whose husband is not insured under to resolving the problem of a conflict subparagraphs (a), (b), (c), (d), (e), (f), between the provisions of Community (g) or (h) of this paragraph" is not law and the provisions of national law regarded as insured under the Old-Age relating to the definition of the scope of Law. national social security schemes the Centrale Raad van Beroep referred the following question to the Court of Accordingly, the appellant's wife is not Justice for a preliminary ruling: regarded as having been insured under the Netherlands legislation during the same period as her husband. "Must the rule (as set forth in Article 12 (1) of Regulation No 3 and Article 13 (2) (a) of Regulation No 1408/71) However, since she worked in the according to which a worker employed Netherlands from 10 September 1962 to in the territory of a Member State is 12 March 1971 inclusive, on the subject to the legislation of that State be assumption that she is a worker within interpreted as meaning that a national the meaning of the regulations on social provision of a Member State is security, and on the basis of the incompatible with that rule in providing provisions oí Amele 12 (1) of Regulation that a married woman who resides in

By order of 24 March 1982, the Court, 1. The Road van Arbeid observes that after establishing that no Member State by adopting the Old-Age Law, the or institution of the Communities, being legislature intended to establish an a party to the proceedings, has requested old-age pension scheme for the entire that the case be decided in plenary population, that is to say for everyone session, assigned the case to the Second residing in the country. However, it Chamber pursuant to Article 95 (1) and points out, it was also considered (2) of the Rules of Procedure. necessary to extend the insurance scheme to non-residents who were pursuing activities as employed persons in the In accordance with Article 20 of the Netherlands and thus, in keeping with a Protocol on the Statute of the Court of rule generally recognized at international Justice of the EEC, written observations level, an employed person · is insured were submitted by the Raad van Arbeid, under the legislation of the country in the respondent in the main action, which he works. It adds that the effect of represented by its President, A. P. A. the above rule has been however to Riemen, and by the Commission of the exclude from the scope of the general European Communities, represented by old-age pension scheme all residents who J. Amphoux, action as Agent, assisted by pursue activities as employed persons in Auke Haagsma. another country and are on that account insured in that country and that, in such Upon hearing the report of the Judge- a case, the spouses of such persons are Rapporteur and the views of the also excluded from the insurance scheme. Advocate General, the Court (Second The Netherlands legislature took the Chamber) decided to open the oral view that the workers concerned and the procedure without any preparatory members of their family were fully inquiry. covered by the legislation of the country in which they worked.

resident's wife who works in the aforementioned circumstances, could not Netherlands and is on that account be excluded from insurance cover under insured under the Old-Age Law must the Old-Age Law, it would be particu- depend on the existence of a convention larly difficult to ensure its application in with the other country. On that point, it view of the fact that the scheme refers by way of example to Annex V J 2 introduced by the Old-Age Law is still in (c) and (e) to Regulation N o 1408/71. force. In the case of married couples, only the husband is, as a general rule, obliged to pay contributions. In It points out that on the basis of the principle, only he is entitled to a pension Council Directive of 19 December 1978 and the amount of the pension takes his on the progressive implementation of the marital status into account. principle of equal treatment for men and women in matters of social security (Official Journal L 6 of 10 January 1979, According to the Raad van Arbeit, that p. 24), the measures needed to amend exclusion does not constitute an obstacle, the Old-Age Law with a view to in the proper sense of the word to the abolishing inequalities in the treatment free movement of workers within the accorded to men and women are at meaning of Article 3 (c) of the EEC present being drafted. Treaty.

KOKS v RAAD VAN ARBEID

national schemes and, accordingly, to the equal treatment thus laid down by regulation itself. abolishing any provision conflicting therewith and in particular with "the scope of the schemes and the conditions The fact that Regulation No 1408/71 of access thereto". contains a definition of the term "worker" in Article 1 (a) is immaterial in view of the fact that the Member States The Commission therefore considers that retain the power to determine which the Netherlands legislation, and in persons are affiliated, and under what particular the Old-Age Law, according circumstances, to the social security to which married women are not schemes which classify them as workers. insured, unless their husbands are The Commission recalls that as far as insured under that Law, is contran.' to those matters are concerned the Court the directive in question and must be reached the same conclusions in its amended within a period expiring on judgment of 24 April 1980 in Case 22 December 1984 since the directive 110/79 Coonan [1980] ECR 445. was notified on 22 December 1978.

JUDGMENT OF 23. 9. 1982 — CASE 275/81

KOKS v RAAD VAN ARBEID

III — A n s w e r to the q u e s t i o n put repaid to Mr Koks. The amount by the Court refunded may be broken down as follows: for the period from 1 January It is clear from the answer given by the 1967 to 31 December 1967: HFL 239; Raad van Arbeid to the question put to it for the period from 1 January 1968 to 31 by the Court that on 5 February 1976 December 1968: HFL 274; and for the the Raad van Arbeid was informed by period from 1 January 1969 to 20 the person who was Mrs Koks's September 1969. HFL 58. Repayment employer at the time that Mrs Koks was effected by setting off those sums worked for him from 15 September 1962 against the contributions payable by the to 12 March 1971 inclusive. husband.

The periods in question, prior to 1 The Centrale Raad van Beroep, Utrecht, January 1976, can no longer be checked considers that the payment or non- in view of the fact that G. F. Koks and payment of contributions has no bearing his wife were not insured. In the light of on the answer to the question whether a the downward adjustments made by person is to be regarded as being the 'Beperkte Registratie' [Restricted affiliated to an insurance scheme. Affiliation] Department of the Sociale Verzekeringsbank [Social Insurance The Raad van Arbeid is none the less of Bank], it may in general be assumed that the opinion that where contributions Mr and Mrs Koks were not insured in have been unduly paid, the Sociale this country between 1 January 1963 and Verzekeringsbank, Amsterdam, allows, if 31 December 1966 inclusive, for the necessary the person concerned to treat purposes of affiliation. From 1 January such contributions as voluntary contri- 1967 to 20 September 1969, the couple butions, with all the implications which were not insured. The contributions evidently result therefrom as regards the deducted from his wife's salary· were pension attributable to him.

JUDGMENT OF 23. 9. 1982 — CASE 275/81

IV — Oral procedure presented oral argument at the sitting on 6 May 1982.

The Commission of the European Com- The Advocate General delivered his munities, represented by A. Haagsma, opinion at the sitting on 17 June 1982.

Decision

1 By order of 29 September 1981, which was received at the Court Registry on 19 October 1981, the Centrale Raad van Beroep [Court of last instance in social security matters] referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 12 (1) of Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and Anicie 13 (2) (a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II) p. 416) in order to determine whether certain provisions of the Netherlands legislation on pensions are compatible with Community law.

5 Under the legislation in force in the Netherlands, the Algemene Ouderdomswet [General Law on Old Age, hereinafter referred to as "the Old-Age Law"] of 31 May 1956 and its implementing decrees, an old-age pension is in principle granted to insured persons who have reached the age of 65. The category of insured persons includes persons residing in the Netherlands but not persons who reside there because they have a contract of employment and are accordingly insured under the provisions of foreign legislation. Similarly, a married woman residing in the Netherlands whose husband is not insured under the provisions of the relevant Netherlands legislation is not regarded as insured. In general, married women are not entitled, as such, to an old-age pension. However, a married man is entitled to a higher pension than a single person. Provision is also made for the pension to be reduced by 1% for each full calendar year in which the married male beneficiary was not insured between the ages of 15 and 65 years. The same reduction applied to the beneficiary's wife for each calendar year, within the same age bracket, in which she was not insured.

6 Under that legislation, the appellant's pension was reduced, initially by 9 % of the total amount in respect of the period of nine years in which he was insured in the Federal Republic of Germany and, subsequently, by 9 % of the same amount on the ground that his wife had not been insured during the same period.

7 Since the problem of the compatibility of that legislation with Community law and, in particular, with Regulations Nos 3 and 1408/71, was raised, the Centrale Raad van Beroep stayed the proceedings and referred to the Court the following question:

u Apart from Council Directive N o 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979, L 6 p. 24) which allows the Member States a period of six years in which to implement the necessary provisions, there is no rule of Community law precluding the Member States from making the right of either spouse to derive benefits under a social security scheme dependent on the affiliation of the other spouse to the same scheme.

w Consequently, under Community law as it stands at present, a national provision of a Member State which provides that a married woman residing in that Member State whose husband is not insured there for the purposes of an old-age pension because he is so insured under the legislation of another Member State, is not insured for those purposes eitherį if she has resided in

KOKS v RAAD VAN ARBEID

the territory of the first-mentioned Member Sute and has been employed there, is not incompatible with the provisions of Community law in force.

Costs

1 3 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these 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.

For the Registrar

H. A. Rühi O. Due Principal Administrator President of the Second Chamber