C-151/87
ECLI:EU:C:1988:138
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BAKKER v RWP
OPINION OF MR ADVOCATE GENERAL DARMON delivered o n 8 M a r c h 1988 *
Mr President, husband alone of a pension which included Members of the Court, the pension rights of both spouses.
1. The Arbeidsrechtbank, Antwerp, has 4. Afterwards, the Belgian Rijksdienst voor submitted to the Court for a preliminary Werknemerspensioenen granted Mr Bakker ruling questions on the interpretation of an old-age pension calculated on the basis Article 12 (2) of Council Regulation (EEC) of the household rate, that is to say 7 5 % of N o 1408/71. · The background to the his previous pay, pursuant to the rules of reference is as follows. Belgian legislation. The household rate was applied to Mr Bakker by reason of his status as a married man whose wife did not receive a retirement pension or other benefit equivalent thereto. Mr Bakker, who had worked for about three years in Belgium, 2. Mr Cornells Bakker, a Netherlands received 3/45ths of the household rate national, who worked as an employed indicated above. person, mainly in the Netherlands but also for a few years in Belgium, applied for and obtained two old-age pensions. Those pensions were obtained, it must be stressed, solely upon the application of the national 5. Mr Bakker's difficulties began when the rules of each of those two Member States. Netherlands legislation on old-age pensions was amended following Council Directive 7 9 / 7 / E E C of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in 3. In the Netherlands, Mr Bakker obtained, matters of social security. 2 The Netherlands as from 1 May 1984, a married man's authorities considered that the principle set pension calculated on the basis of 100% of out in the directive should be implemented the net minimum wage pursuant to the in the Netherlands by the replacement of provisions of the Algemene Ouderdomswet the system in which the husband alone (the General Law on Old-Age Insurance) in received a pension representing the rights of force at that time. An important feature of both spouses by a new system in which each that pension was that it not only represented spouse received his and her own retirement the pension rights of Mr Bakker himself but pension. Consequently, by virtue of the new also included the pension rights of his wife provisions of the Algemene Ouderdomswet, who had never had a gainful occupation. which came into force as from 1 April 1985, Effectively then, the Netherlands legislation each spouse was entitled from the age of 65 provided at that time for the payment to the to be paid a pension equal to 50% of the net minimum wage. The new legislation cut * Translated from die French. 1 — Official Journal, English Special Edition, 1971 (II) p. 416. 2 — Official Journal 1979, L 6, p. 24.
OPINION OF MR DARMON —CASE 151/87
the cake in two, as it were. That legislation previously received. Mr Bakker appealed also provided that a married person who against that decision to the Arbeids- fulfilled the conditions for receipt of a rechtbank, Antwerp, which, by judgment of retirement pension but whose spouse had 8 March 1987, made a reference to this not yet reached the age of 65 was to receive Court for a preliminary ruling. a pension supplement equivalent to 50% of the net minimum wage.
The purpose of the latter provision was clearly to provide for a 8. The first sentence of Article 12 (2) of transition between the old and the new Regulation N o 1408/71, which is central to system and to prevent a household from the questions referred to this Court, sets out abruptly losing half of the income acquired a general principle and the second sentence under the legislation on retirement pensions. sets out derogations from that principle. The general principle consists in allowing provisions of the legislation of a Member State for reduction, suspension or with- drawal of benefits in cases of overlapping
6. Pursuant to the new legislation, the with other social security benefits or other Sociale Verzekeringsbank (the Netherlands income to be invoked even though the right Social Insurance Bank) altered the pension to such benefits was acquired under the paid to Mr Bakker. Since Mrs Bakker was legislation of another Member State or such not yet 65 years old, the Social Verzeker- income arises in the territory of another ingsbank awarded him, as from 1 April Member State. That principle is departed 1985, his own pension equivalent to 50% of from where the person concerned receives the net minimum wage plus a pension benefits of the same kind in respect of inva-
supplement. Later, when Mrs Bakker lidity, old age, death (pensions) or occupa- reached the age of 65, the Sociale tional disease which are awarded by the Verzekeringsbank continued to pay to Mr institutions of two or more Member States Bakker, as from 1 September 1985, his in accordance with the provisions of Articles pension equal to 5 0 % of the net minimum 46, 50 and 51 or of Article 61 (b). wage, but without a pension supplement, since from that date Mrs Bakker was entitled to her own pension equal to 50% of the net minimum wage. 9. In essence, the Arbeidsrechtbank, Antwerp, asks the Court whether Article 10 (1) of Belgian Royal Decree N o 50 of 24 October 1967, as amended, which provides for two rates of retirement pension
7. T h e fact that Mrs Bakker had been according to whether or not the retired awarded a retirement pension under the person's spouse receives a retirement Algemene Ouderdomswet led the Belgian pension, a survivor's pension or other Rijksdienst voor Werknemerspensioenen to benefit deemed to be equivalent thereto, take the view that Mr Bakker no longer constitutes a provision for reduction within fulfilled the conditions necessary to have his the meaning of the general principle set out Belgian pension calculated on the basis of in the first sentence and, if so, whether it the household rate, since his spouse was in falls within the derogations provided for in receipt of a retirement pension. Therefore, the second sentence.
on 26 March 1986, the Rijksdienst voor Werknemerspensioenen decided to award M r Bakker, as from 1 September 1985, a 10. In the form in which they were pension calculated on the basis of the single submitted by the national court, those person's rate, that is to say 6 0 % of the pay questions may lead this Court to give an
BAKKER v RWP
ostensibly straightforward reply. It appears 14. In my view, the Arbeidsrechtbank, to follow from the wording of Article 12 (2) Antwerp, is inquiring generally whether the itself that the general principle that fact that Mr Bakker's Belgian pension is provisions for reduction of benefit are reduced because of the award of an old-age applicable in cases of overlapping and the pension to his wife in the Netherlands is derogations from that principle only relate contrary to a rule of Community law. It to cases of overlapping benefits where they thought that it had identified Article 12 (2) are received by the same person. of Regulation No 1408/71 as being such a possible bar in Community law, whereas that provision concerns situations different from that in point. Consequently, I consider that it is within the spirit of the preliminary 11. All of the observations submitted to the ruling procedure to examine the question Court during the written procedure agree whether other Community rules or prin- on this point. One need only refer to the ciples are relevant here, as the Netherlands use of the expressions 'le bénéficiaire' in the Government indicated in its observations. first sentence (the expression is omitted in the English version) and 'the person concerned' in the second to conclude that such an interpretation is correct. 15. If one looks at the situation which led the national court to make a reference to the Court, one indeed sees certain diffi- culties and paradoxes which arguably might pose problems with regard to principles of 12. However, the provision at issue in the Community law. Belgian royal decree establishes a means for reducing a retirement benefit paid to a person when his or her spouse is in receipt of a retirement or survivor's pension. This case does not therefore concern a reduction 16. It may be observed first of all that the by reason of the overlapping of benefits question of the economic position of the received by the same person. Consequently, elderly spouse who has not worked and from a strict reading of the questions who consequently has not contributed to an submitted by the national court one could old-age insurance scheme is treated immediately conclude that the first question differently in the social security legislation should be answered in the negative and of the Member States. there would then be no need to answer the two parts of the second question.
17. In their legislation some States have opted for a 'classic' solution to this question consisting in supplementing the old-age 13. However, that approach would not, in pension of the previously working spouse on my view, be in accordance with the spirit of the ground that he has to support the other the case-law of the Court, which has always spouse. This is the case, for example, with been anxious to give a useful reply to the the Belgian legislation, in particular Article national court making the reference, nor 10 (1) of the Royal Decree of 24 October would it do justice to the real difficulties 1967, the provision at the centre of the evinced by the case which prompted the preliminary questions submitted to this national court to make the reference. Court, which draws a distinction between a
OPINION OF MR DARMON —CASE 151/87
'single person's pension' and a 'household the non-working spouse do not seem to be pension', and also with the French legis- inconsequential with regard to provisons lation, which, in Article L 351-13 of the such as Article 10 (1) of the Belgian Royal code de la sécurité sociale, lays down the Decree of 24 October 1967. If a principle that an old-age pension is to be non-working spouse of a person who increased for a 'dependent spouse'. In this worked both in the Netherlands and in type of legislation it may be noted that a Belgium receives an old-age pension under dependent spouse provides entitlement to an the Netherlands social security legislation, increase in the pension of the other spouse the consequence of this is that under the but does not receive his or her own pension. Belgian social security legislation the person concerned receives an old-age pension for a single person and not a household pension. On the other hand, if a person worked, for example, in France and Belgium, the fact 18. The present Netherlands legislation that the French social security legislation adopts solutions which are substantially took into account the situation of the different. Before 1 April 1985 the scheme of non-working spouse by providing a the Algemene Ouderdomswet was in some supplement for a 'dependent spouse' to the respect comparable to the classic system in employed person's old-age pension does which a supplementary pension is granted not, apparently, prevent that employed for a dependent spouse, since the husband person from receiving the Belgian old-age was paid a higher pension than that which pension at the household rate. he would have received as a single person. However, the original feature of the Netherlands system was that a married woman who was not in paid employment was regarded as acquiring her own rights to an old-age pension but those rights were 2 1 . 1 am perplexed by the possibility of such actually brought to fruition by the payment a difference in treatment, particularly if one to the husband alone of a pension which was bears in mind that the award under higher than that for a single person. Netherlands legislation to the non-working spouse of an old-age pension of his or her own appears to be the result of the implementation of a Community directive. 19. After the adoption of Council Directive 7 9 / 7 , the Netherlands implemented the principle of equal treatment for men and women by pursuing the logic of its legis- lation. In the new provisions of the 22. Let us take the case of a household in Algemene Ouderdomswet it was provided which the working spouse has worked in that the acquisition of pension rights by the the Netherlands and Belgium and the case non-working spouse was to lead to the of a different household in which the payment of that person of his or her own working spouse has worked in France and pension and not to an increase in the other Belgium. Let us suppose that the total spouse's pension. amount of the two Netherlands old-age pensions paid to the spouses in the first household is equal to the amount of the French old-age pension, increased on 20. These differences in the way in which account of a dependent spouse, paid to the national legislation treats the situation of working spouse in the second household.
BAKKER v RWP
How will Belgian law treat those two pension as a rarity whose disadvantages households? In the first household, the must be accepted. However, with regard to working spouse will receive a Belgian a Community principle such as that of equal old-age pension for a single person. In the treatment between men and women in second, he will receive the household matters of social security, which is pension. In total, the combined pensions in implemented by Council Directive 79/7, it is the first household will be lower than in the hard to see why legislation awarding a second household because Belgian law is pension of his or her own to the applied differently in the two cases. non-working spouse should a priori be inferior to legislation which awards the working spouse alone an increase in his or her pension by reason of the fact that the other spouse is dependent, nor why it 23. Does not such a result raise questions as should be regarded as superfluous. to its compatibility with Community law?
26. The proceedings in which the Arbeid- srechtbank, Antwerp, has made the 24. In its written observations the reference do therefore reveal a serious Commission argued that the unfavourable difficulty with regard to Community law consequences suffered by Mr and Mrs which deserves examination. Is the Court Bakker flow not from the application of the in a position, in this reference for a Belgian rules at issue but from the preliminary ruling, to make that exam- Netherlands legislation concerning old-age ination and to resolve the difficulty? pensions as in force before 1 April 1985.
27. During the written procedure, only the 25. That argument is not entirely Netherlands Government extended the convincing. In a sense it amounts to saying discussion outside the confines of Article 12 that if, like the classic systems in which a (2) of Regulation N o 1408/71, which, as we supplement is awarded for a dependent have seen, is irrelevant to the real problem. spouse, the 'old' Algemene Ouderdomswet In brief, it submitted that the application of had merely provided a higher pension for the Belgian provision at issue had effects the working spouse without basing the incompatible with the free movement of increase on pension rights acquired by the workers within the Community and that non-working spouse, the implementation of that provision was also contrary to the Community Directive 79/7 would not have abovementioned Directive 79/7, inasmuch necessitated the adoption of new provisions as Article 4 (1) of that directive requires in the Netherlands whereby the pension national legislation to provide that contri- rights acquired by the non-working spouse butions and benefits are calculated indepen- are converted into his or her own pension. dently of the family status of the recipient. T o accept this reasoning would mean implicitly recognizing the system of having a supplement for a dependent spouse as a sort of Community 'standard model' and the Netherlands system, in which the 28. It was therefore only in their brief oral non-working spouse receives his or her own observations that the Belgian Rijksdienst
OPINION OF MR DARMON —CASE 151/87
voor Werknemerspensioenen and the 31. The wording of the questions submitted Commission touched on those points. I do by the national court, which relate exclu- not think that the arguments put forward at sively to the precise wording of a provision the hearing with regard to those points of Community law that bears no relation to could have assisted the Court. the problem with which that Court is faced, has therefore prevented a full airing of the arguments relating to the compatibility with Community law of a national provision 29. As regards the question of taking family which, from the payment of social security status into account in the calculation of benefits which take into account the benefits, the Commission pointed out that, position of a non-working spouse, draws according to the judgment of the Court in different inferences according to whether the Teuling case, 3 a supplement for a those benefits take the form of a supplement dependent spouse, for which statistically to the working spouse's pension or of a more married men qualify than married personal pension paid to the non-working women, is contrary to Article 4 (1) of spouse. Directive 7 9 / 7 / E E C unless the grant of the supplement can be justified by objective reasons, but that a supplement expressed as a percentage of gross income and not, as in the Teuling case, as a percentage of a uniform minimum wage does not constitute an objective justification. The conclusion 32. In particular, the wording of the that this problem of equal treatment is questions prevented the Court from ascer- important but is not submitted to the Court taining the consequences of the conditions at this time does not therefore seem to me under which the non-working spouse is very convincing, nor does it go to the heart liable to pay old-age pension contributions of the matter. The Arbeidsrechtbank, pursuant to the new provisions of the Antwerp, has clearly asked the Court a Algemene Ouderdomswet. It seems to be question concerning the conformity with important to be able to assess whether those Community law of a national provision conditions show that pensions such as those which draws a distinction between a single governed by the Algemene Ouderdomswet person's pension and a household pension exhibit such specific characteristics that it is whereby the latter is calculated on the basis justified to treat them differently from of a higher earned income than the other. supplements for a dependent spouse.
30. Furthermore, the assertion that the application of the Belgian provision in question would affect the free movement of workers within the Community has not been discussed at all in the context of the 33. Consequently, I would suggest that the difference in treatment of the old-age Court should reply to the questions of the benefit paid to the non-working spouse on national court in a way which will allow the one hand and the supplement paid to that court, if it considers it necessary, to the working spouse on account of a make a new reference to the Court but with dependent spouse on the other. a question concerning the problem which is actually raised. In my view, the Court's reply cannot be along the lines suggested by 3 — Case 30/85 Teuling v Bedrijfsvereniging voor de Chemische Industrie [1987] ECR 2497. the Commission. Since Article 12 (2) of
BAKKER v RWP
Regulation No 1408/71 plainly does not the Belgian provision is compatible or relate to the situation referred to in Article incompatible with that article. Furthermore, 10 (1) of the Belgian Royal Decree of 24 it would be quite premature to test such a October 1967, it would in any event be provision against other provisions of inappropriate to rule that a provision like Community law.
34. Consequently, I would propose that the Court should rule as follows:
'A national provision under which a retirement pension is calculated on the basis of the rate for a single person, which is lower than the household rate, if the spouse of the retired person is in receipt of a retirement or survivor's pension or other benefit equivalent thereto, is not covered by Article 12 (2) of Regulation No 1408/71 of 14 June 1971; both the first sentence and the second sentence thereof relate exclusively to provisions which a Member State lays down for reduction, suspension or withdrawal of benefit in the case of the overlapping of different benefits paid to the same person'.