C-285/82

NIEUWE ALGEMENE BEDRIJFSVERENIGING [New General Professional and Trade Association],

on the interpretation 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 (Official Journal, English Special Edition 1971 (II), p. 416) and of Regulation No 574/72 of the Council of 21 March 1972 laying down the procedure for implementing Regulation N o 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1972 (I), p. 159),

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

composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: S. Rozès Registrar: P. Heim

gives the following

The facts of the case, the course of the (3) Invalidity pensions being paid at that procedure and the observations sub­ time which were increased under mitted under Article 20 of the Protocol the Interimwet Invaliditeitstrekkers on the Statute of the Court of Justice of [Interim Law on the Rights of the European Economic Community Beneficiaries of Invalidity Benefits] may be summarized as follows: were converted under the Wet Over­ gangsregeling Arbeidsongeschikt­ heidsverzekering [Insurance against I — Facts and written p r o c e d u r e Incapacity for Work (Transitional Provisions) Law] into benefits under Relevant legislative provisions the incapacity (Insurance) Law (Article 10 (1) of the Invalidity Laws (a) Relevant provisions of national law (Repeal) Law and Article 3 of the Interim Law on the Rights of In the Netherlands until 1 January 1965 Beneficiaries of Invalidity Benefits); the compulsory insurance of workers against the financial consequences of invalidity and old age was governed by (4) Benefits which were not increased the Invaliditeitswet [Invalidity Law]. under the Interim Law on the Rights From 1 July 1967 the Invalidity Law was of Beneficiaries of Invalidity Benefits replaced by the Wet op de Arbeids­ are paid under the Invalidity Law ongeschiktheidsverzekering [Law on (Article 10 (1) of the Invalidity Laws Insurance against Incapacity for Work, (Repeal) Law); hereinafter referred to as "the Incapacity (Insurance) Law"]. In order to provide (5) Rights to an old-age pension under for the cases governed by the Invalidity the Invalidity Law were redeemed in Law the Liquidatiewet Invaliditeitswetten respect of insured persons who were [Invalidity Laws (Repeal) Law] was under the age of 36 on 1 July 1967 passed on 10 December 1964 (Staatsblad or who were above that age but No 488). whose old-age pension at the age of 65 would be less than HFL 60 per The rules contained in the Invalidity annum (Articles 22 and 32 (1) of the Laws (Repeal) Law, as amended, may be Invalidity Laws (Repeal) Law and summarized as follows: the Royal Decree of 26 June 1967, (1) Payment of contributions under the Staatsblad No 367). Invalidity Law could no longer be made from 1 January 1965 (Article 3 of the Invalidity Laws (Repeal) Other insured persons who had acquired Law); rights to an old-age pension under the Invalidity Law would receive, on (2) With regard to invalidity arising completion of their 65th year, an old-age after 1 July 1967 a right to benefit pension under the Invalidity Law sup­ could no longer arise under the plementary to their old-age pension Invalidity Law (Article 10 (1) of the under the Algemene Ouderdomswet Invalidity Laws (Repeal) Law); [General Law on Old-age Insurance].

The Law of 26 May 1976 further insurance by the legislation under which amending the Invalidity Laws (Repeal) they were completed or considered as Law inserted therein Articles 32a to 32m completed, and all periods treated as inclusive so that invalidity pensions such, where they are regarded by the which should have been paid from 1 said legislation as equivalent to periods January 1976 or a later date were of insurance." redeemed by the payment of a single benefit. (3) After the Invalidity Law had been replaced by the Incapacity (Insurance) (b) Relevant provisions of Community Law the question arose as to how law periods of insurance completed under the Invalidity Law were to be transferred (1) In order to apply the rules of calcu- and taken into account, after 1 July lation provided for by Article 46 (2) in 1967, in relations with other Member the event of total or partial overlapping States and for the purposes of calculating of insurance periods, it is necessary to benefits pro rata temporis. That question refer to Article 15 (1) (b) and (c) of is linked to the fact that affiliation of Regulation No 574/72 which provides insured persons to the scheme under the that: Invalidity Law involved lacunae which made it impossible to establish on the "(b) when a period of insurance or basis of the membership register the residence completed under compul- periods of insurance completed. sory insurance under the legislation of one Member State coincides with In that respect Circular No 315 of the a period of insurance completed Sociale Verzeringsraad [Social Security under voluntary or optional Council] of 8 March 1967 gave in- continued insurance under the structions in connection with the legislation of another Member application of Regulations Nos 3 and 4 State, only the period completed for the taking into account and under compulsory insurance shall transference to foreign institutions of be taken into account; periods of insurance completed before 1 July 1967. At the present time those instructions have been expressly repeated (c) when a period of insurance or in paragraph 4 of Part H of Annex V to residence, other than a period Regulation No 1408/71 in relation to treated as such, completed under the application of Community regu- the legislation of one Member State lations now in force, as follows: coincides with a period treated as such under the legislation of another Member State, only the "Application of Netherlands legislation period other than a period treated on insurance against incapacity for work as such shall be taken into account." (a) For the purposes of the provisions of Article 46 (2) of the regulation, periods of employment and periods (2) The concept of a period of treated as such completed under insurance is to be found in Article 1 (r) Netherlands legislation before 1 July of Regulation No 1408/71 which states: 1967 shall also be considered as periods of insurance completed " 'periods of insurance' means periods of under Netherlands legislation on contribution or periods of employment insurance against incapacity for as defined or recognized as periods of work.

Mr Derks was an employed person in Mr Derks brought an action against that the Netherlands from 7 June 1955 to decision before the Raad van Beroep, 1 April 1971. From 7 June 1955 he made Amsterdam, which made an order 500 weekly contributions under the referring the following questions to the Invalidity Law and after 1 July 1967, Court of Justice under Article 177 of the that is to say the date on which the Treaty. Incapacity (Insurance) Law came into force, until 31 March 1971, the date on 1. For the purposes of the application of which his gainful employment in the Article 46 (2) of Regulation (EEC) Netherlands terminated, he was insured No 1408/71 of the Council must a under the latter law. In accordance with contribution period under the the provisions of the Invalidity Laws Invaliditeitswet [Invalidity Law] be (Repeal) Law Mr Derks's right to an deemed to have been completed old-age pension under the Invalidity under "legislation" within the Law was redeemed in June 1980 by meaning of Article 1 (j) in the Sociale Verzekeringsbank [Social conjunction with Article 1 (r) and Security Bank]. with Article 94 (2) of that regulation? Mr Derks also paid voluntary contri­ 2. If a contribution period is completed butions in the FR of Germany for the under "legislation" within the years 1957 to 1966 and for 1968. meaning of the said Article 1 (j) in With effect from 7 October 1977 Mr conjunction with Article 1 (r) is it to Derks was granted a Netherlands be regarded as an insurance period pension in respect of his incapacity for other than a period treated as such, work which arose on 8 October 1976. within the meaning of Article 15 (1) Pursuant to Article 46 (2) of Regulation (c) of Regulation (EEC) No 574/72 N o 1408/71 the defendant in the main of the Council or is it to be regarded proceedings took into account on the as a period treated as an insurance one hand the period of insurance in the period, completed under the legis­ Netherlands from 1 January 1968 to 31 lation of a Member State, within the December 1968 inclusive, but not the meaning of the last-mentioned corresponding period in Germany, and provision? on the other hand the period of insurance in Germany from 1 January 3. In the case of a period completed 1957 to 31 December 1966 inclusive, but before 1 July 1967, for which no not the corresponding period in the contributions were paid under the Netherlands. Invaliditeitswet although the person concerned was gainfully employed The Nieuwe Algemene Bedrijfs­ within the meaning of paragraph 4 (a) vereniging [hereinafter referred to as of Part H of Annex V to Regulation "the Association"] relied on Article 15 No 1408/71 (as that provision was (1) (c) of Regulation No 574/72. worded at the time of the contested

decision) must the period in question Procedure, decided to assign the case to be regarded as an insurance period the First Chamber. other than a period treated as such, within the meaning of Article 15 (1) (c) of Regulation No 574/72, or as a period treated as aft insurance period, I I I — "Written o b s e r v a t i o n s sub- completed under the legislation of a m i t t e d to t h e C o u r t Member State, within the meaning of the last-mentioned provision. 1. Observations submitted by the As- 4. If a period treated as a period of sociation compulsory insurance, completed under the legislation of a Member State, coincides with a period of With regard to the first question the voluntary insurance other than a Association considers it necessary to period treated as such, does the refer to paragraph 4, Part H , of Annex question whether a period is V to Regulation No 1408/71 in order to compulsory or voluntary (Article 15 determine the meaning of "periods of (1) (b)) or the question whether a insurance" in Article 46 (2) thereof. period is "treated as such, completed Paragraph 4 provides that for the under the legislation of one Member purposes of the provisions of Article 46 State" (Article 15 (1) (c)) take (2) of Regulation No 1408/71, periods precedence under Article 15 of Regu- of paid employment and periods treated lation No 574/72? as such completed in the Netherlands before 1 July 1967 are to be considered as periods of insurance completed under The order making the reference for a the Incapacity (Insurance) Law. Periods preliminary ruling was lodged at the of insurance completed under the Court Registry on 27 October 1982. Invalidity Law are no longer taken into account according to the criteria in force at the time in respect of the implemen- Pursuant to Article 20 of the Protocol on tation of that law but, according to the Statute of the Court of Justice of the Circular No 315 and paragraph 4 of Part EEC written observations were lodged H of Annex V to Regulation No by the Association represented by 1408/71, account is taken of all periods F. W. M. Keunen, a member of the Legal of paid employment as periods of Department (Social Security) of the insurance whereas at the time all periods Geemenschappelijk Administratiekantoor of paid employment were far from being [Joint Administrative Office], acting as regarded as periods of insurance under Agent, and by the Commission of the the Invalidity Law. Consequently the European Communities, represented by Association takes the view that the its Legal Adviser, J. Amphoux, acting as periods thereby taken into.account could Agent, assisted by F. Herbert of the not be regarded as periods of insurance Brussels Bar. for the puposes of Article 1 (r) of Regu- lation No 1408/71 but rather as periods Upon hearing the report of the Judge- treated as such. Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any The reply to the second question follows preparatory inquiry. By order of 23 from the reply which it is suggested March 1983 the Court, pursuant to should be given to the first question. The Article 95 (1,) and (2) of the Rules of periods of paid employment completed

before 1 July 1967 must be regarded as 2. Observations submitted by the "periods treated as such" within the Commission meaning of Article 15 (1) (c) of Regu lation No 574/72. The Commission observes that an exami nation of the relationship established by paragraph 4 of Part Η of Annex V With regard to the third question it is between periods of insurance completed possible to speak of periods of insurance under the Incapacity (Insurance) Law under the Invalidity Law only where and periods of insurance completed during such periods contributions were under the WAO shows that the

Article 15 (1) (b), (c) and (d) of Regu the material time the plaintiff lation No 574/72 the expression actually completed periods of "periods of insurance" refers exclusively insurance under the legislation in to periods which are not "treated as force. Until 1 January 1965 he was such", that is to say actual periods of compulsorily insured, and from 1 insurance. Within the category of actual January 1965 to 31 December 1966 periods of insurance it is possible to he continued to be insured, as a differentiate between periods of compul wage-earner. sory insurance and periods of voluntary insurance. (b) Periods completed under the Invalidity Law are not treated as periods of insurance by the national The periods treated as periods of legislation applicable to periods of insurance are not actual periods of insurance completed under the insurance and therefore in the context of Incapacity (Insurance) Law.

van Beroep. It restricts itself to the obser Law but to periods of activity as an vation that a period treated as a period employed person pursued in the Netherlands. of insurance always takes second place to an actual period of insurance, Where periods of voluntary insurance regardless of whether the period is a and periods treated as periods of com period of compulsory or voluntary pulsory insurance coincide preference insurance. must be given to the latter.

The superimposition of periods of With regard to the second question the compulsory insurance is therefore only Commission considers that periods of possible where the legislation in question insurance completed under the Invalidity also takes into account fictitious periods Law are not "periods treated as such" treated as periods of insurances which within the meaning of Article 1 (r) of coincide with a period of compulsory Regulation No 1408/71 and Article 15 insurance completed in another Member (1) (c) of Regulation No 574/72. State; With regard to the third question it However, where a period of compulsory seems that in this case the periods in insurance coincides with a period of respect of which no contribution has voluntary insurance only the former may been paid must be regarded under the be taken into account; Invalidity Law as periods which have actually been completed and not as Any superimposition of periods of periods treated as insurance periods; voluntary insurance is excluded in view furthermore in paragraph 4 (a) of Part H of the fact that the person concerned of Annex V the relationship between the must exercise a right of option (Article periods completed under the Invalidity 15 (2) of Regulation No 1408/71); in Law and the insurance provided for by such a case, once again, it is only the Incapacity (Insurance) Law is not possible to envisage the superimposition based on the criterion of insurance but of periods of insurance where fictitious on that of activity as an employed periods coincide with periods which have person. actually been completed.

2 Those questions arose in the course of proceedings between W. Derks and the Nieuwe Algemene Bedrijfsvereniging, a Netherlands social security institution (hereinafter referred to as "the Association").

3 Mr Derks was an employed person in the Netherlands from 7 June 1955 to 1 April 1971. From 7 June 1955 he made 500 weekly contributions under the Invaliditeitswet [Invalidity Law] and from 1 July 1967 to 31 March 1971, that is to say the date on which he ceased to be an employed person in the Netherlands, he was insured under the Wet op de Arbeidsongeschiktheids­ verzekering [Law on Insurance against Incapacity for Work, hereinafter referred to as "the Incapacity (Insurance) Law"], which replaced the Invalidity Law. The Invalidity Law was so-called "Type Β legislation" under which the amount of the benefits was not independent of the length of the periods of insurance. The Incapacity (Insurance) Law is so-called "Type A legislation", under which the amount of the benefits is independent of the length of the periods of insurance.

JUDGMENT OF 2. 2. 1984 — CASE 285/82

4 Mr Derks also made voluntary contributions in Germany during the years 1957 to 1966 and in 1968. From 1 April 1971 he was subject only to the. German scheme of compulsory invalidity insurance.

5 With effect from 7 October 1977 Mr Derks was granted a Netherlands pension in respect of his incapacity for work which arose on 8 October 1976. Pursuant to Article 46 (2) of Regulation No 1408/71 the Association took into account on the one hand the period of insurance in the Netherlands form 1 January to 31 December 1968 inclusive, but not the corresponding period in Germany and on the other hand the period of insurance in Germany from 1 January 1957 to 31 December 1966 inclusive, but not the corresponding period in the Netherlands.

DURKS v NIEUWE ALGEMENE BEDRlJFSVERENlGlNG

3. In the case of a period completed before 1 July 1967, for which no contributions were paid under the Invaliditeitswet although the person concerned was gainfully employed within the meaning of paragraph 4 (a) of Part H of Annex V to Regulation No 1408/71 (as that provision was worded at the time of the contested decision) must the period in question be regarded as an insurance period other than a period treated as such, within the meaning of Article 15 (1) (c) of Regulation No 574/72, or as a period treated as an insurance period, completed under the legislation of a Member State, within the meaning of the last- mentioned provision?

4. If a period treated as a period of compulsory insurance, completed under the legislation of a Member State, coincides with a period of voluntary insurance other than a period treated as such, does the question whether a period is compulsory or voluntary (Article 15 (1) (b) or the question whether a period is "treated as such, completed under the legislation of one Member State" (Article 15 (1) (c)) take precedence under Article 15 of Regulation No 574/72?"

8 Until 1 January 1965 the Invalidity Law provided a scheme for the compulsory insurance of workers against the financial consequences of invalidity and old age, and the insurance also operated as an old-age insurance scheme for its members, which from 1957 was a supplementary old-age insurance scheme. "With effect from 1 July 1967 the Invalidity Law was replaced by the Incapacity (Insurance) Law.

9 In order to deal with the cases subject to the Invalidity Law the Netherlands legislature on 10 December 1964 passed the Liquidatiewet Invaliditeitswetten [Invalidity Laws (Repeal Law], According to Article 3 thereof, from 1 January 1965 contributions could no longer be paid under the Invalidity Law but wage-earners remained insured against the risk of invalidity until the Incapacity (Insurance) Law came into force on 1 January 1967. It appears from the file that contributions paid before 1 January 1965 were sub- sequently redeemed.

T h e first t h r e e q u e s t i o n s

12 The questions referred to the Court inquire whether, for the purposes of the application of Article 46 of Regulation N o 1408/71 and of Article 15 of Regulation N o 574/72:

(a) a period of employment completed before 1 January 1965 under the Netherlands legislation in force at that time, in respect of which contri- butions were paid in accordance with that legislation;

(b) a period of paid employment completed in the Netherlands before 1 July 1967 in respect of which no contributions were paid;

must be regarded as periods of insurance or as periods treated as periods of insurance.

DERKS ν NIEUWE ALGEMENE BEDRIJFSVERENIGING

15 The Court has already stated in its judgment of 9 June 1977 (Case 109/76 Blottner v Nieuwe Algemene Bedrijfsvereniging [1977] ECR 1141) that the words "present or future" within the meaning of Article 1 (j) must not be interpreted as excluding measures which were no longer in force at the time of the adoption of Regulation No 1408/71 and of the regulation implementing it. The objective of Article 51 of the Treaty would not be attained if the worker lost the status of an insured person within the meaning of the Community regulations solely because of the fact that, when those regulations were adopted, the national legislation in force at the time at which the worker was insured had been replaced by different legislation. It follows from those considerations that the fact that the legislation in force at the time during which the contributions were paid and the employment was performed is no longer in force is irrelevant in relation to the replies to be given to the questions referred to the Court.

16 It follows from the wording of paragraph 4 of Part H of Annex V to the regulation, cited above, that the periods referred to in the questions arc to be regarded as periods of insurance completed under Netherlands legislation and that they are to be regarded as periods completed under legislation of the type referred to in Article 37 (1) (known as "Type A"). The fact that the contributions paid were subsequently redeemed and that, in respect of the

JUDGMENT OF 2. 2. 1984 — CASE 285/82

period from 1 January 1965 to 1 July 1967, no contribution was paid is irrelevant in that connection. The fact that the insurance scheme in force before 1 July 1967 was in fact of Type Β is equally irrelevant.

Costs

20 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.

DERKS v NIEUWE ALGEMENE BEDRIJFSVERENIGING

On those grounds,

T H E C O U R T (First Chamber),

in answer to the questions referred to it by the Raad van Beroep, Amsterdam, by order of 19 October 1982, hereby rules:

For the Registrar

H. A. Rühi T. Koopmans Principal Administrator President of the First Chamber