C-140/88

Mr President, establishing a general scheme for excep­ Members of the Court, tional medical expenses, (4) before the implementation of a special arrangement between the Netherlands and Belgium he was entitled to family allowances under the Belgian legislation, (5) a periodic benefit on grounds of invalidity or incapacity for work 1. Mr Noij, who has been living in the under the relevant Netherlands scheme was Netherlands at least since 1979, worked equally superfluous since he was in receipt underground for 25 years as a miner in of an old-age pension and the two benefits Belgium. He has accordingly been in receipt could not be paid concurrently, (6) the only of a Belgian retirement pension since 1979, reason for continued insurance under the although at the time he was only 52. Since general scheme relating to incapacity for the Netherlands has a general insurance work is that certain benefits thereunder may scheme to which all persons residing in that be granted in order to facilitate living and country are compulsorily affiliated, even if working conditions whereas the corre­ they do not carry on a professional or sponding Belgian scheme is linked to trade activity, Mr Noij was required to pay residence within the territory of that social security contributions calculated, in Member State. However, it is clear from the particular, on the basis of his Belgian standpoint adopted by Mr Noij that he retirement pension. Those contributions, does not consider that he needs the last- amounting to 23 % of that pension, were mentioned benefits either. levied under the following general schemes: old-age pensions, insurance for incapacity for work, widows' and orphans' pensions, family allowances and insurance for excep­ tional medical expenses. 3. A Netherlands Decree of 7 July 1982, which took effect on 1 January 1982, amended the legislation, with the result that former miners in receipt of a pension under the Belgian legislation, in so far as they do not carry on a professional or trade activity 2. In the proceedings before the national and do not receive a benefit under the court, Mr Noij claimed that (1) it was Netherlands scheme, are not regarded as unnecessary for him to be insured under the insured for the purposes of the various general old-age insurance scheme since he Netherlands schemes referred to above. was already in receipt of a Belgian pension, (2) in the event of his death, his widow would be entitled to a pension equal to 80% of his own pension, (3) he was entitled to receive from the Belgian State all the 4. However, that provision does not resolve advantages arising from the Netherlands Mr Noij's situation, as far as 1979 is Law on sickness insurance and the Law concerned, nor that of persons in receipt of

6. But the problem remains of the contri­ butions paid by the plaintiff in the main proceedings in respect of 1979. The solution (2) Subject to the provisions of Articles 14 depends, in particular, on whether the rules to 17: for determining the applicable legislation in Article 13 of Regulation No 1408/71 continue to apply to former frontier (a) a worker employed in the territory workers who do not take up a new of one Member State shall be employment in their country of residence. If subject to the legislation of that so, Mr Noij would continue to be covered State even if he resides in the by the Belgian legislation alone, and could territory of another Member State not be required to pay any social security or if the registered office of place contributions in the Netherlands. The of business of the undertaking or judgment in Case 302/84 Ten Holder v individual employing him is Nieuwe Algemene Bedrijfsvereniging [1986] situated in the territory of another ECR 1821 could be open to the interpre­ Member State.' tation that that would be the case. In the operative part of that judgment the Court held as follows: 8. In order to enable it to resolve the 1 — Regulation on the application of social security schemes to dispute before it, the Hoge Raad der employed persons, to self-employed persons and to Nederlanden (Supreme Court of the members or their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), updated Netherlands) has referred the following by Regulation (EEC) No 2001/83 (OJ 1983 L 230, p. 1) questions to the Court of Justice for a and most recently amended by Regulation (EEC) No 2332/89 (OJ 1989 L 224, p. 1). preliminary ruling:

'it follows from certain provisions of Regu­ lation No 1408/71 that it applies to certain categories of person who, when the contingency occurs, do not have the status (a) if, after ceasing the activity pursued of "employed persons" within the meaning in the territory of the other of the law of employment. It would be Member State, he no longer contrary to the spirit of those provisions and worked at all? to one of the essential objectives of the regulation, which is to guarantee to workers who move within the Community their accrued rights and advantages, to exclude from the scope of the regulation — by (b) if, after ceasing that activity, he giving a restrictive interpretation to the defi­ worked in the territory of the State nition of the term "worker" — any other of residence for some time, either case where, under the relevant legislation, as an employed person or as a self- the insurance continues to cover the insured employed person? against risks but the insured is no longer bound to pay contributions'.

(2) Is the answer to Question 1 different if 11. Similarly, the Court stated in its the activity carried on in the State of judgment in Case 182/78 Algemeen residence referred to in (b) above was Ziekenfonds Drenthe-Platteland v Pierik of only secondary importance?' [1979] ECR 1977, at paragraph 4, that

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'even if they do not pursue a professional or 15. The Netherlands Government and the trade activity, pensioners entitled to draw Commission also point to the draw-backs pensions under the legislation of one or which the opposite interpretation could more Member States come within the entail for the pensioners themselves, and to provisions of the regulation concerning the possible financial consequences for "workers" by virtue of their insurance Member States with a general insurance under a social security scheme, unless they scheme. are subject to special provisions laid down regarding them'.

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NOIJ

19. (a) As a general rule, all persons are 13(1) as seeking to ensure that a person is subiect to the legislation of the country in not which they reside, which is usually also the country in which they engage in an occu­ pation Article 13 of the regulation is designed merely to resolve such conflicts of legislation as may arise in cases where the 'insured over the same period under the place ol residence and the place of legislation of more than one Member State'. emplovment are not in the same country or in other highly specific situations listed by that article As soon as one of the situations referred to in Article 13 comes to an end A person who ceases to work in a country once and for all, and in particular as soon as other than that in which he resides the person concerned ceases to carry on any manifestly embarks upon a 'new period', professional or trade activity, the principle hence the problem which Article 13 is that the legislation of the country of designed to resolve no longer arises in residence applies should, in my view, again relation to him. prevail If that legislation makes affiliation subiect to the pursuit of a professional or trade activity, nothing will happen for as long as the person in question does not work If. on the other hand, that legislation 22. Finally, in its recent judgment in Kits provides for compulsory affiliation of all van Heijningen, 4the Court expressed itself residents, including therefore 'ex-workers', in the following terms: to the social security scheme, such affiliation will occur automatically.

24. If a person who previously worked in another Member State resides or establishes his new residence in the territory of a 27. (d) The interpretation that a worker in Member State whose social security legis­ receipt of a pension may, in principle, be lation provides for the compulsory affil­ subject to the legislation of the State of iation of all residents, whether or not they residence is confirmed by an amendment to are carrying on a professional or trade Regulation No 1408/71 made by the activity, Community law, as it now stands, Council on 18 July 1989, that is to say after cannot prevent the application of that legis­ the date of the judgment in Ten Holder. lation. That amendment consists in the addition of a second paragraph to Article 33, which is 6 worded as follows:

25. That being the scope of Article 13, it must be concluded that, as the Netherlands Government and the Commission state in 'Where, in the cases referred to in Article the Ten Holder judgment, the Court can 28 a, the acquisition of benefits in respect only have been referring to persons who of sickness and maternity is subject to 'cease' to carry on an activity in the the payment of contributions or similar territory of another Member State on only a payments under the legislation of a Member temporary basis, for instance on grounds of State in whose territory the pensioner in sickness, maternity or unemployment. question resides, by virtue of such residence, these contributions shall not be payable.'

according to which persons to whom the Medical Expenses). It follows from the regulation applies are subject only to the order for reference that the plaintiff in the legislation of the Member State in which main proceedings is entitled to receive from they carry on an activity as employed or the competent Belgian institution the self-employed persons, even if they reside in advantages resulting from that law. As the the territory of another Member State, no Commission also points out, it is possible to longer applies once such persons definitively infer from the Court's judgment in Case cease to carry on a professional or trade 275/83 Commission v Belgium [1985] activity. ECR 1097 in connection with Article 33 of Regulation No 1408/71 that, where the benefits granted in the country of residence in accordance with Anicie 28a are payable by the institution of another Member State, 29. To summarize, I therefore propose an that institution alone is authorized to deduct initial conclusion to the effect that contributions, no contribution being char­ Community law, as it now stands, does not geable in the country of residence. preclude a worker who ceases to carry on a professional or trade activity abroad and who does not take up a new activity in his country of residence from being subject to the legislation of his country of residence 32. The new paragraph (2) added to Article where that legislation is based on the 33 in 1989 merely reaffirms expressly the principle of compulsory insurance for all principle which the Court had already residents, without prejudice of course to the deduced from Article 33 as amended by pension rights conferred on him, and, where Council Regulation (EEC) No 2864/72 of appropriate, the concomitant duties imposed 19 December 1972 (OJ, English Special on him by the legislation of the country in Edition 1972 (31 December), p. 15). If that which he was last employed (for example, principle was already implicit in Article 33 deduction of sickness insurance contri­ as it stood in 1972, it must have been butions). applicable in 1979, the year in which Mr Noij claims he was wrongly charged contributions.

35. Of relevance here may be a principle entitled at the age of 65 may bring him, it frequently reaffirmed by the Court, would be inequitable to require him to pay particularly in its judgment in de Rijke, those contributions. Hence there are sound according to which: reasons for amending Regulation No 1408/71 to enable such former workers to be exempted at their request from the application of the social legislation of their country of residence. 'the aim of Articles 48 to 51 would not be 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 38. Nevertheless, under the legislation by the laws of a single Member State'. currently in force, it is impossible to reply to the question submitted by the Hoge Raad by stating that Community law precludes the compulsory charging of contributions provided for by the national social security schemes of a country with a general 36. In my view, however, it follows from insurance scheme except, where appropriate, the case-law in question that this rule comes sickness insurance contributions. into operation only where the application of a provision of Regulation No 1408/71 may itself give rise to the aforesaid consequence. In this case the advantages which the Belgian legislation guarantees to Mr Noij are left intact de jure. It is only because the 39. I therefore propose that the Court legislation of the country of residence answer Question 1(a) as follows: requires him to pay contributions intended, in theory at least, to bring him new advantages that he loses de facto a portion of his Belgian pension. 'As they now stand, the Community rules on social security do not prevent a person who resides in the territory of one Member State and who since ceasing his activity as an employed person in the territory of 37. The fact remains that where a worker another Member State has been in receipt of who has taken early retirement considers a retirement pension in respect of that that, under the legislation of the State in activity by virtue of the social legislation of which he previously worked, he receives an that other Member State from being adequate pension and all the desirable social charged contributions, partly on the basis of guarantees (sickness insurance, family that retirement pension, as a person subject allowances and, possibly, a pension for his to compulsory insurance under the social widow) and the contributions which he is legislation of the State of residence if, after required to pay in the country of residence ceasing his activity in the territory of the constitute an extremely heavy burden for other Member State, he no longer worked him that is unrelated to the advantage that at all. Such contributions must, however, be the additional pension to which he may be levied in accordance with the provisions of Title III of Regulation No 1408/71 7 — Judgment in Case 43/86 Sociale Verzekerìngsbank v De Rijke[mT\ ECR 3611, at paragraph 14. concerning pensioners.'

'The provisions of the legislation of a Member State under which a pensioner who is pursuing a professional or trade activity is not subject to compulsory insurance in 46. As for the problem tackled in the respect of such activity shall also apply to a second question, it is sufficient to refer to pensioner whose pension was acquired the judgment in Kits van Heijningen, cited under the legislation of another Member above, in which the Court held that

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(2) The situation is the same if, after ceasing his activity in the territory of the Member State responsible for paying the retirement pension, the person in question carried on an activity for some time in the territory of the State of residence, either as an employed person or a self-employed person, even if that activity was of only secondary importance.'

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