C-276/81

HEIRS OR ASSIGNS OF G. T. KUIJPERS

on the interpretation of Article 13 (c) of Regulation N o 3 of the Council of 25 September 1958 concerning social security for migrant workers and of Article 14 (1) (c) (i) of Regulation 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

As from 1 July 1976 Mr Kuijpers (who attained the age of 65 on 22 July 1976) As is apparent from the order making the was granted an old-age pension under reference, the late Mr G. T. Kuijpers, the Old-Age Law. born on 22 July 1911 and of Netherlands nationality, worked in the Netherlands and in Belgium. On and after 1 January 1957 (the date on which the Netherlands Under the scheme of the Old-Age Law, Algemene Ouderdomswet [Law on on attaining the age of 65 a (single) General Old-Age Insurance, hereinafter person in principle receives a full pension referred to as "the Old-Age Law"] equal to the so-called social minimum entered into force) he worked in (for single persons). That amount is Belgium as a carter in a coal-mine until reduced however by 2% (infer alia) for he became incapacitated for work about each calendar year in which the person the end of 1972 or the beginning of entitled to the pension was not insured 1973. In view of his incapacity for work during the period between his 15th and he was awarded a Belgian invalidin' 65th birthdays (Article 10 (1) (a) of the pension. In addition to working in a Old-Age Law). For that purpose the Belgian coal-mine, after 1 January 1957 uninsured calendar years or parts thereof Mr Kuijpers also worked in the are added together and, pursuant to the Netherlands from 1 June 1966 to 19 Order of 17 June 1957 of the Minister of December 1972. He worked there for Social Affairs and Public Health issued five davs a week from 6 p.m. to 9 p.m. pursuant to Article 10 (6) (now Article Mr Kuijpers became incapacitated for 10 (5)) of the Old-Age Law, any work in that occupation as well and in remaining pan of a calendar year is view of that incapacity he was granted a disregarded for reduction purposes, to benefit as from 19 December 1972 under the advantage of the claimant. the Netherlands Ziektewet [Law on Sickness] and as from 19 December 1973 a benefit under the Netherlands Wet If a married couple are concerned op de Arbeidsongeschiktheidsverzekering usually only the husband is entitled to an

old-age pension on attaining the age of employment are insured under legislation 65 (Article 7 of the Old-Age Law). The on old-age and survivors' pensions and pension is in principle equal to the social family allowances in force in the country minimum for married persons. Bv virtue in which they work". of Article 10 (2) (1) (a) and (b) of the Old-Age Law the reduction then amounts to 1 % for each calendar year in The royal decrees prior to the above- which the husband was uninsured and mentioned royal decree contain similar 1% for each calendar year in which the provisions. wife was uninsured.

January 1957. Both the husband and the Invalidity Insurance. Therefore, in Mr wife concerned in the main action fulfil Kuijpers's case the number of uninsured the conditions for the award (in full) of years after 1 January 1957 is 16 (after those notional years of insurance before rounding down to the nearest whole 1 January 1957 and therefore it is only calendar year) which results in a 16% the period after 1 January 1957 which reduction of his pension.

(h) of this paragraph" is not regarded as According to Article 2 (1) (a) of the insured under (inter alia) the Old-Age Royal Decree of 18 October 1968 laying Law. down a general administrative measure within the meaning of Article 6 (2) and (3) of the Old-Age Law (extension and The earlier royal decrees contain restriction of the number of persons corresponding provisions. insured), the following persons, amongst others, are not treated as insured persons On the basis of the provisions cited for the purposes of the Old-Age Law; above, for the period between 1 January 1957 and 19 December 1973 Mr

SOCIALE VERZEKERINGSBANK v KUIJPERS

JUDGMENT OF 23. 9. 1982 — CASE 274/81

That is Article 13 (c) of Regulation No 3 and why, according to the Sociale Verze- Article 14 (1) (c) (i) of Regulation N o keringsbank, Title II of the regulations 1408/71 may be influenced by the fact contain by implication the basic rule that that the employment in the country of the worker must be insured in the residence was only of a secondary nature Member State in which he pursues the and the full-time employment was activities which constitute the source of carried on in another Member State. the income necessary for the subsistence of the worker and his family.

1. Before broaching the question In the latter case, according to the referred to the Coun the Sociale Verze- Sociale Verzekeringsbank, the relevant keringsbank submits first of all some criterion is that of the place of the observations on the meaning and scope registered office of the undertaking or of the coordinating Community pro- the place of establishment of the visions concerning the designation of the individual employing the worker and if legislation of a Member State as being that criterion cannot be applied the the legislation applicable in the matter appropriate criterion is that related to the and a summan· ot the special features of residence of the worker. Netherlands leculation concerning affiliation to the national scheme. With regard to the scope of the designation of the legislation applicable (a) h observes that the essential the Sociale Verzekeringsbank maintains purpose of the Communitv rules is to that such designation does not as such prevent a worker from being uninsured signify that the worker in question is

insured under the legislation declared insured persons because they are liable to applicable. tax on their income from professional or trade activities pursued in the country. The Community regulations are in the nature of coordinating provisions which It states that this system, in conjunction do not affect the national provisions with the secondary nature of the activity determining the persons insured and the pursued in the Netherlands and the fan conditions for affiliation and the of actually being affiliated to the scheme designation of national provisions cannot of another Member State, might lead to create a right to insurance. They merely a situation in which the Sociale Verze- lay down rules governing the case where keringsbank was not informed of the the employment relationship comes activity pursued in the Netherlands since within the jurisdiction of more than one knowledge of that fact is generally more Member Sute. difficult to obtain in practice in the case of frontier workers whose activities in each of the States in question may According to the Sociale Verzekerings- remain unknown by employers and bank these considerations are of insurance institutions. importance as regards the reply to the question whether the designation of legislation as applicable excludes affili- (b) With regard to the question ation to the insurance scheme of another referred to the Court by the Centrale

According to the Sociale Verzekerings- legislation of another Member State bank the question is whether the entails the exclusion of the group of insurance in the country in which the insured persons under its own national main activities were pursued may be legislation. called in question as a result of the pursuit of secondary and wholly With regard to the Netherlands legis- marginal activities in the country of lation the Sociale Verzekeringsbank residence. According to it a literal states that affiliation is automatic application of Article 13 (c) of Regu- provided that the legal conditions are lation No 3 and of Article 14 (1) (c) (i) fulfilled and the only persons who are of Regulation No 1408/71, if the registered are those who, although they situation had been known in good time, have the status of residents, are excluded could have led to designation the from the group of persons insured under Netherlands legislation as that which the compulsory insurance covering the should have been applicable. entire population and those who, although they do not have the status of According to the Sociale Verzekerings- resident, are included in the group of bank such a situation could have

constituted a hindrance to the free lation and was not simultaneously movement of workers since it is entirely insured under Netherlands legislation. at variance with the coordination which arises in this case from the simultaneous application of Netherlands and Belgian The Sociale Verzekeringsbank considers legislation without the application of the that if, notwithstanding the provision regulations and which results in affili- contained in the first sentence of Article ation to the Belgian insurance scheme 13 (1) of Regulation No 1408/71, actual and exclusion from the Netherlands affiliation to the Belgian insurance insurance scheme. scheme must be considered as not being contrary to the said provision, it may be also be maintained with regard to the The Sociale Verzekeringsbank thus period beginning on 1 October 1972 that raises the question whether such a by virtue of Anicie 14 (1) (c) (i) of Regu- reversal of the situation could have been lation No 1408/71 Netherlands legis- intended, above all in cases which are to lation is doubtless designated as be considered as extreme, such as this applicable, but that nevertheless there is

Regulation No 1408/71. It observes that necessary to reduce the Belgian pension since the claimant was in fact insured proportionately but it is probably no under the latter legislation he was longer possible to do so. A unilateral excluded from the insurance scheme increase in the Netherlands pension provided under Netherlands ¡aw btcause would then produce advantages, which he worked in another country and was are unjustified and not envisaged by the accordinglv injured and that in that case, regulation, in favour of the person too. the provision of the regulation concerned and those entitled under him. concerning thr designation ot the legislation applicable does not annul the efitv. of th.it national provision From In conclusion the Sociale Verzekerings- this point ot virw. too. tor the period up bank thus considers that it is the Belgian to 1 October 1972. the claimant was legislation which is applicable since the insured exclusiv elv under Belgian legis- person concerned worked full-time in

and that Anicie 14 (1) provides: The Commission points out that under ".Article 13 (2) (a) shall apply subject to Article 5 of that directive the Member the following exceptions or circum- States are required to adopt the measures stances: necessary to ensure that any laws, regu- lations and administrative provisions contrary to the principle of equal treatment are abolished and that, according to Article 4, that principle (c) a worker, other than one employed means that "there shall be no discrimi- in international transport, who nation whatsoever on ground of sex normally pursues his activity in the either directly, or indirectly by reference territorv or two or more Member in particular to marital or family status States shall be subject: . . .". which applies in particular with regard to "the scope of the schemes and (i) to the legislation of the Member the conditions of access thereto". State in whose territory he resides, if he pursues his activity partly in that territory or if he is The Commission considers that the attached to several undertakings Netherlands scheme under which, or several employers who have subiect to certain exceptions, a married their registered offices or places woman is not insured inter alia under the of business in the territory of Old-Age Law unless her husband is different Member States". himself insured under that Law, is incompatible with the provisions of that directive and must accordingly be It adds that Regulation No 3. which was amended during the period which expires replaced by Regulation No I4CS/71. did on : : December 1984.

The Commission recalls that Regulation With regard to that period the N o 3 did not contain any provision competent Netherlands institution could expressly laying down the principle that not exclude Mr Kuijpers from the benefit workers to whom the regulation applied of the application of the Netherlands must be subject to the legislation of a social security legislation. single Member Sute only and that in its judgment of 9 June 1964 in Case 92/63 In this connection the Commission notes Nonnenmacher [1964] ECR 281 the that if a number of uncertainties Court furthermore stated that Anide 12 continue to exist, this is because of the of Regulation No 3 included no judgment in the Coonan case in which provision prohibiting the simultaneous the Court interpreted Articles 1 (a) and 3 application of several systems of of Regulation No 1408/71 as meaning legislation but on the other hand that that "it is for the legislature of each that article prohibited "the application of Member State to lay down the the legislation of a Member State other conditions creating the right or the than that in which the person concerned obligation to become affiliated to a social w o r k s . . . . to the extent that it requires security scheme or to a particular branch that person to contribute to the financing under such a scheme provided always of a social security institution which is that in this connection there is no unable to provide him with additional discrimination between nationals of the advantages in respect of the same risk host State and nationals of the other and of the same period". Member States".

According to the Commission it may be that it may permit in certain clearly- deduced from the foregoing that under defined cases the simultaneous appli- Netherlands legislation it is permissible cation to the same worker of the to exclude from the Netherlands social legislation of more than one Member security scheme persons who do not Sute. Nevertheless in this case too the fulfil certain conditions, and in particular word "simultaneous" used expressly by persons who are already insured outside the Court in the Nonnenmacher case

It It observes that, in this perspective, the observes that the basic principle is that in essential point in this case is therefore to all cases it is necessary to apply at least, reply to the question whether the and generally no more than, one social legislation of a Member State, which security scheme and that in principle the may in principle fix the conditions for legislation of a Member State applicable affiliation to the social security scheme, by vinue of those rules may fix the may exclude from that scheme a worker conditions governing the right and duty to whom the regulation applies because of affiliation. he is already insured in another Member

No 1408/71 than in thai of Regulation Commission this would not be the case if No 3. It emphasizes that, apan from national legislation which the regulation the voluntary insurance or optional declares to be applicable — bv exclusion continued insurance dealt with in Anicie or otherwise — contained provisions 15, Regulation No 142S/71 lays down indicating the application not of that the principle, set out in Amele 13 (1). legislation but oí the legislation ot that the worker must be subiect to the another Memoer State. legislation of a single Member State

JUDGMENT OF 23. 9. 1982 — C^SE 276/81

Article 13 (1) (c) of Regulation No 3 to 30 Mav 1966 inclusive, throughout concerning social security for migrant the whole'of 1967, 1968, 1969, 1970, workers and Article 14 (1) (c) (i) of 1971 and 1972. Regulation (EEC) No 1408/71 of the Council on the application of social The necessary declarations are made to security schemes to employed persons the Soziale Verzekeringsbank by the tax and their families moving within the authorities inter alia where they consider Community must be interpreted as that a person has not been insured under meaning that a provision of a Member the Old-Age Law and the Law on State which is intended to exclude a Widows and Orphans for a certain worker from the benefit of legislation period, for example as a result of his which is declared applicable to him in having been insured in another country accordance with the regulation on the for purposes of old age, death, ground that he is insured at the same prolonged incapacity for work and also time in another Member Sute is family allowances by reason of his incompatible with those articles. employment there.

SOCIALE VERZEKERINGSBANK v KUIJPERS

This is particularly true in the case of The Centrale Raad van Beroep, Utrecht, commercial travellers. in fact considers that, in answering the question whether the person must be (b) It should also be emphasized that it considered to be insured, it is irrelevant may be disadvantageous for the persons whether or not contributions have been concerned to be subject to the legislation paid. of a State other than the State in whose territory they are established. In order to It is true that if it appears that a contri- determine the legislation applicable in bution was wrongly paid, the Soziale the case of a worker who partly does not Verzekeringsbank offers in suitable cases pursue his activities in the territory of the to the person concerned the opportunity Member State in which he resides, the either of having the contribution deemed interest of the person concerned (for to be a voluntary payment, obviously whom, as has been stated, it is in general with a corresponding effect on the advantageous to be insured in the pension to which he is entitled, or of Member Sute in which he resides) must receiving an amount corresponding to always be balanced against that of the the contribution which has been wrongly Member State or Member States paid (at least if the amount of the contri- concerned (for whom it is advantageous bution paid can still be determined). to levy contributions to the social security scheme).

In that territory of two or more Member States. case, several Member States might claim In that regard, it is necessary to prevent payment of contributions and it is the him from being subject to no social interest of the person concerned which is legislation or from being subject to the decisive in the choice between those legislation of two or more Member different interests.

(c) From a more legal or more literal State has no influence on the application viewpoint, it must be noted that the of the rules laid down in Anicie 13 (c) of concept of "main activities or secondary Regulation N o 3 and of Anicie 14 (1) activities" is not to be found either in (c) (i) of Regulation N o 1408/71. Article 13 of Regulation N o 3 or in Article 14 of Regulation N o 1408/71. On the other hand, the concept of "main (e) Nevertheless that does not prevent activity" does appear in Article 14 (a) (2) the question from being asked whether it (incorporated in Regulation N o 1408/71 is not necessary for activities to be by Council Regulation No 1390/81 of actually pursued in the territory of two 12 May 1981, Official Journal 1981, or more Member States. The view might L 143, p. 1). be taken that that is not the case if the activity pursued by the person concerned in the Member State in which he resides Article 14 (a) (2) lays down the is only of a marginal nature. Thus it following principle: might be possible to apply a rule similar to the rule formulated in the judgment of the C o u n of Justice of 23 March 1982 in "A person normally self-employed in the Case 53/81, Levin v Staatssecretańs van territory of two or more Member States Justitie, that is to say that the activity in shall be subject to the legislation of the question must be effective and genuine Member State in whose territory he and that it must not be purely marginal. resides if he pursues anv p a n of his activity in the territory of that Member State." Whatever may be the position of the Court of Justice in relation to the applicability of that rule to the provisions In essence, that rule is identical to the referred to in the questions which it has rule laid down in Article 14 (1) (c) (i). put, the Commission takes the view that However, Article 14 (a) further provides: in this case, Mr Kuijpers's activity in the Netherlands may not be regarded as marginal, since he spent three hours on it "If he docs not pursue any activity in the on five evenings in every week. termory of the Member State in which he resides, he shall be subject to the legislation oí the Member Sute in whose (0 On the basis of the above- terniorv he pursues his main activity." mentioned considerations, the Com­ mission wishes to state, in reply to the questions put to it by the Court, that the From thai sentence it may be inferred fact that only secondary activities are that conversely, if the person concerned pursued in the country of residence has m taci pursues pan of his activity in the no effect on the application of the rule territory of ine Member State in which laid down in Anicie 13 (c) of Regulation he resides, the criterion of "main No 3 and in Anicie 14 (1) (c) (i) of activities*' is not relevant. Regulation No 1408/71, but that those provisions may presuppose that an effective and genuine activity is pursued 'di In short, the Commission therefore in two or more Member States, so that a considers that the fact that only person who pursues an activity which is secondarv activities are pursued in the only marginal is not to be considered as country of residence whereas the mam pursuing an activity within the meaning activities are pursued in anotner Member of the provisions cited.

* According to the provisions of Article 13 (c) of Regulation No 3 of the Council and Anicie 14 (1) (c) (i) of Regulation No 14C8/71 of the Council, Mr Kuijpers could be considered to be affiliated to the Netherlands general

JUDGMENT OF 23. 9. 1982 — CASE 276/81

old-age insurance scheme set up by the Algemene Ouderdomswet [Law on General Old-Age Insurance, hereinafter referred to as the Old-Age Law], which entered into force on 1 January 1957.

s However, according to Article 2 (1) (a) of the Royal Decree of 18 October 1968 laying down a general administrative measure within the meaning of Article 6 (2) and (3) of the above-mentioned Netherlands Law, "residents who are employed outside the Netherlands and by virtue of that employment are insured under legislation on old-age and survivors' pensions and family allowances in force in the country in which they work" are not treated as insured persons for the purposes of that Law.

6 In addition, according to Anicie 2 (1) (i) of the said Royal Decree a married woman residing in the Kingdom whose husband is not insured under the provisions of that paragraph is not considered as insured under the Old-Age Law.

7 In addition to those provisions, and within the same legislative framework, there are others which provide that the amount of the pension to be awarded to the person concerned is to be reduced by 1% in respect of himself and 1 % in respect of his spouse for every calendar year in which they were not insured under the Old-Age Law.

n This principle, which was applied by the Court in relation to Regulation No 3, is expressed in Anicie 13 (1) of Regulation No 1408/71 which provides that "A worker to whom this regulation applies shall be subject to the legislation of a single Member State only" and that that legislation "shall be determined in accordance with the provisions of this Title", that is to say Title II on the "determination of the legislation applicable".

12 According to Article 13 (2) (a) of Regulation No 1408/71, subject to the provisions of Article 14 to 17 a worker employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State.

r< Anicie 14 (1) (c) (i) creates one of the exceptions to the rule laid down by Anicie 13 (2) (a) by providing thai "a worker, other than one employed in international transpon, who normally pursues his activity in the territory of two or more Member States shall be subiect to the legislation of the Member State in whose territory he resides, if he pursues his activity panly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States".

JUDGMEOT OF 23. 9. 1982 — CASE 276/81

M It follows from the provisions cited above that the application of national legislation is determined by reference to criteria drawn from the rules of Community law. Although the Court stated in its judgment of 24 April 1980 in Case 110/79, Coonanv Insurance Officer, [1980] ECR 1445, that it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme, it must be emphasized that this does not mean that the Member Sutes are entitled to determine the extent to which their own legislation or that of another Member Sate is applicable.

On those grounds,

T H E COURT (Second Chamber),

in answer to the question submitted to it by the Centrale Raad van Beroep, by order of 29 September 1981, hereby rules:

Article 13 (c) of Regulation No 3 and Article 14 (1) (c) (i) of Regulation No 1408/71 must be interpreted as meaning that a national provision of a Member State is incompatible with those rwo provisions if its effect is such that a worker residing within that Member State is not insured for the purposes of an old-age pension because he is insured for such purposes under the legislation of another Member State, even if he resides in the territory of the first-mentioned Member State and is there engaged in gainful employment concurrently with his activities in the territory of the other Member State. That answer is not affected by the fact that the employment in the State of residence is secondary to the main activity of the person concerned which is pursued in the other Member State.

Due Chloros Grévisse

Delivered in open court in Luxembourg on 23 September 1982.