C-43/86

3. The Hoge Raad wishes to know whether 7. When he reached the age of 65 on 14 the fact that certain periods are, by virtue of July 1981, the Board granted Mr de Rijke Point 2 (c) of the Annex, to be regarded as pursuant to the old-age law a full married periods of insurance in respect of a married man's old-age pension. He therefore woman whose husband is entitled to a enjoyed on his own and his wife's behalf the pension under the old-age law confers upon transitional benefits introduced to take that woman a right, enforceable against the account of the fact that the old-age law did competent Netherlands institutions, to be not enter into force until 1 January 1957 regarded and treated as having been insured and the fact that consequently persons having reached the age of 15 years before * Translated from the French. that date would theoretically have had the 1 — In the original version of the regulation (Official Journal, English Special Edition 1971 (II), p. 46), the provision in maximum rate reduced, as provided for in question was Point 2 (c) of Part F of Annex V. Article 10 of the old-age law.

OPINION OF MR MISCHO —CASE 43/86

9. As far as his wife was concerned, the Board considered that her insurance under (i) on 2 July 1978, the date of Mrs de the old-age law ceased on her departure for Rijke's departure for France, whereafter France, but it took into account the period she ceased to be insured under Article 6 from 2 July 1978 (when she left the of the old-age law (as the Board Netherlands) to 14 July 1981 (the 65th maintains), or birthday of her husband) pursuant to Annex VI, Part I, Point 2 (c) of Regulation (EEC) No 1408/71. (ii) on 14 July 1981, the date of Mr de Rijke's 65th birthday, whereafter she could no longer rely on Point 2 (c) of 10. On 25 May 1981 Mrs de Rijke applied Part I of Annex VI to Regulation No to remain insured on a voluntary basis 1408/71 (as the Centrale Raad Van under the old-age law for the period from Beroep held in its decision against 14 July 1981 to 6 July 1984 (the date of her which the Board has appealed). 65th birthday). If that application were approved, Mrs de Rijke would, in the event of her husband's death, be entitled to take advantage of the same provisions of the 13. Set in that factual context, the question Royal Decree of 1956. It would also which the Hoge Raad has referred to the eliminate the unfavourable consequences for Court is, in effect, whether the period Mr and Mrs de Rijke which seem to be the between those two dates, which is to be necessary result of their moving to Monaco (and was) taken into account as a period of on 15 October 1982. In this reference for a insurance under Annex VI to Regulation preliminary ruling it is not necessary to take (EEC) No 1408/71 for the purpose of a view on the reasons which may have calculating Mr de Rijke's pension must prompted Mrs de Rijke to submit her consequently also be regarded as a true application, or on the problems which may insurance period under the old-age law. arise from the fact that Mr and Mrs de Rijke ultimately settled in a territory to which the Treaty provisions on freedom of 14. The Board, the Netherlands movement for workers probably do not Government and the Commission, which apply. I merely note that the application was are the only parties to have submitted submitted prior to their departure. written observations in the present

22. The idea that a Community regulation might have such an effect is, of course, a 17. The Court first recalled that it had startling one. However, it has to be previously ruled that it is for the legislature considered because the situation in this case of each Member State to lay down the is quite special. Annex VI is an integral part conditions creating the right or the obli­ of a directly applicable Community regu­ gation to become affiliated to a social lation and is entitled 'Special procedures for security scheme or to a particular branch of applying the legislations of certain Member such a scheme, provided always that in this States'. Annex VI therefore has a somewhat connection there is no discrimination hybrid character. Thus, it requires in between nationals of the host State and particular executive officers of the Sociale nationals of the other Member States. 2 Verzekeringsbank, when calculating exclu­ sively Netherlands pensions, to take into consideration periods of residence abroad 18. The conditions of affiliation include which are not to be taken into account questions relating to its termination. 3 under the old-age law itself and which do not constitute periods completed under the 2 — Judgment of 24 April 1980 in Case 110/79 Coomn v legislation of another Member State, Insurance Officer [1980] ECR 1445. capable of 'aggregation' on the basis of the 3 —Judgment of 12 July 1979 in Case 266/78 Bnmorì v relevant provisions of Regulation No Landesversicherungsanstalt Rhehiprovinz [1979] ECR 2705, paragraph 6. 1408/71. The question therefore arises

whether the periods to be taken into impeding the freedom of movement of those consideration pursuant to Annex VI might persons who, having resided or worked in not possibly constitute periods of affiliation the Netherlands, wish to move to another under the old-age law. Member State' (paragraph 22) and ' ... the purpose of [Point] 2 (c) ... is ... to facilitate the free movement of workers from other Member States who move to the 23. In considering that question it is most Netherlands whilst their wives remain in the important to bear in mind that, as the Court country of origin, by enabling the periods ruled in the Spruyt and de Jong cases, 'the during which the wives are resident in provisions of Regulation (EEC) No another Member State to be taken into 1408/71 and in particular those of Annex account' (paragraph 23). VI thereto were adopted to implement Article 51 of the EEC Treaty and must be interpreted in the light of the objective of Article 51, which is to contribute to the 26. Because of its quite general wording establishment of the greatest possible Point 2 (c) may be considered to cover the freedom of movement for migrant case of women born in the Netherlands who workers ... '. That objective 'would not be move to another Member State. attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the advantages in the field of social security guaranteed to them 27. We are concerned here with provisions by the laws of a single Member State'. which, like all of Regulation (EEC) No 1408/71, are intended to prevent workers from losing, on account of their moving, 'the advantages in the field of social security 24. However, since under the scheme of the guaranteed to them by the laws of a single old-age law the main qualifying criterion is Member State'. 4 residence in the Netherlands and since Article 10 (1) of Regulation (EEC) No 1408/71 introduced the principle of abol­ ishing national residence clauses, it is 28. The purpose of Annex VI and in precisely in order to take account of that particular of Point 2 (c) thereof is not aim that Annex VI, Part I, Point 2 of Regu­ therefore to ensure that wives of lation (EEC) No 1408/71 provides that Netherlands workers who move to another certain transitional advantages are to be country may continue automatically to granted to a worker and his wife even if accumulate new rights under Netherlands they do not satisfy the residence conditions legislation. That aim may be achieved laid down by the old-age law for the grant through continued voluntary insurance. of those advantages. I refer here to the Court's reasoning set out in paragraphs 20 and 21 of the Spruyt judgment mentioned above. 29. In other words, the fact that a Netherlands national residing in another Member State can no longer acquire new rights to benefits under the Netherlands 25. In the same judgment the Court stated social security scheme does not amount to that ' ... the purpose of subparagraph (a) is to prevent the obstacles which might arise 4 — See paragraph 19 of the Spniyt judgment and paragraph 15 from Article 43 of the old-age law from of the de Jong judgment.

an obstacle to freedom of movement, assumption that it was empowered to do provided that the person concerned, after so — to confer such an effect on the establishing his residence in another provisions in question. Member State, neither forfeits the rights previously acquired on Netherlands territory nor is prevented from acquiring such rights 33. In Point 2 of Part I the following in respect of periods already completed in expressions are used: that territory, merely because he no longer resides there. However, neither of those eventualities has materialized under the 'Periods of insurance ... shall also be old-age law in the case of Mrs de Rijke, considered as periods of insurance who retains the rights which she has completed in application of Netherlands acquired. She does not acquire any new legislation for general old-age insurance' rights once she ceases to fulfil the residence (Point 2 (a)); condition, unless she continues her insurance voluntarily. ' ... periods ... shall also be taken into account as insurance periods' (Point 2 (c)). 30. A misunderstanding might arise from a superficial reading of the judgments in 5 Caracciolo and Giletti 6in which the Court I consider the two expressions to be equi­ used the expressions 'acquiring a right' and valent. 'acquiring entitlement'. In my opinion, there is no doubt that the Court was referring in those judgments to rights deriving from Point 2 (e) is worded as follows: periods of affiliation completed in another Member State prior to the change of residence and not to the 'acquisition' of new 'As regards a woman who has been married rights on the basis of periods which have and whose husband has been subject to not been completed in accordance with the Netherlands legislation on old-age legislation of that State. insurance, or is deemed to have completed periods of insurance in pursuance of subparagraph (a) ... '. 31. It may therefore be concluded that it would not be in keeping with the purpose of Annex VI for Mrs de Rijke to have been 34. In my view, that wording shows clearly able, merely by the operation of the enough that the legislature wished to draw a provisions of that Annex, to remain distinction between periods during which a affiliated to the general Netherlands old-age person was actually subject to Netherlands insurance scheme. legislation, that is to say, affiliated to the scheme established by the old-age law, and periods which must simply be taken into account when the pension rights are 32. Lastly, the very wording of Annex VI calculated. tends to confirm that the Community legis­ lature had no intention — even on the

be applied to the periods envisaged in Point calculation of the old-age pension only if 2 (c), since it, too, refers to periods taken the person concerned has resided for six into account 'as insurance periods'. years in the territory of one or more 36. It is therefore possible to conclude that Member States after the age of 59 years and the Community provision submitted for the for as long as that person is residing in the interpretation of the Court does not oblige territory of one of those Member States. I the Netherlands authorities (even on the find it difficult to believe that the Council, assumption that it could do so) to regard with the participation of representatives the periods referred to in Point 2 (c) as from the Netherlands, wished, or was able, periods of affiliation, or, consequently, to through Point 2 (f), to deprive a person take account of those periods in deter­ insured under a social insurance scheme of mining the expiry date of the period the benefits deriving from an actual period permitted for the submission of an of affiliation merely because that person had application for affiliation on a voluntary moved to a non-member country. On the basis. other hand, I do not rule out the possibility that such benefits might be forfeited in the 37. That reasoning is also borne out by the case of periods whose inclusion had been wording of Point 2 (f), which provides that provided for solely in order to facilitate the periods referred to in Points 2 (a) and 2 freedom of movement for workers within (c) are to be taken into account for the the Community.