C-245/88

OPINION OF MR MISCHO — CASE C-245/88

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 June 1990 *

Mr President, which is not a Member State of the Members of the Court, Community.

4. On 1 May 1974 Mr Daalmeijer took 1. Throughout his working life, Mr Daal- early retirement and went to live in France meijer, a Netherlands citizen, has been together with his wife, where neither of affiliated to the Dutch general old-age them pursued an activity either as 'employed insurance scheme, even during the years in persons' or as 'self-employed persons'. Until which he was posted abroad as a civil the age of 65 Mr Daalmeijer received servant in the Ministry of Defence. benefits under the Netherlands Uitker­ ingswet Gewezen Militairen (Law on Allowances for Former Members of the Armed Forces).

'Is a (former) official under Article 13(2)(d) (2) Subject to Articles 14 to 17: of Regulation (EEC) No 1408/71 subject to the legislation of the Member State in whose service he was last employed, even if he and his wife have gone to live in the territory of another Member State, where neither of them has carried on real and actual activities for the purposes of Article 13(2) where they are also not otherwise subject to the legislation of that other (d) civil servants and persons treated as Member State by virtue of that provision?' such shall be subject to the legis­ lation of the Member State to the which the administration employing them is subject'. 9. The national court is therefore essentially asking whether, by derogation from the Old-age Law, the view should be taken that under the Community rules on determining 11. It is not immediately clear why that the legislation applicable, Mr Daalmeijer article should be in issue in the main and his wife continued to be compulsorily proceedings since it is manifestly a provision insured under the Old-age Law during the whose aim is to prevent conflicts of legis­ period after their departure for France. The lation and it is clear from the actual notion underlying that reasoning is that if wording of the Centrale Raad Van Beroep's the Netherlands legislation were designated first question that no conflict of that kind as the legislation that continued to apply to exists in the circumstances of the case. Mr and Mrs Daalmeijer also during their stay in France, the aforesaid residence requirement could not be relied upon as against them. 12. In reality, the question submitted to the Court can be explained solely by reference to the Court's judgment of 12 June 1986 in Ten Holder (Case 302/84, [1986] ECR 821) 10. Article 13 of Council Regulation No 1 — This regulation was updated by Regulation (EEC) No 1408/71 on the application of social security 2001/83 (OJ 1983 L 230, p. 6) and has since been schemes to employed persons, to self- amended several times, most recently by Council Regu­ lation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 employed persons and to members of their L 331, p. 1).

14. It should be noted that if such a principle could be elicited from the judgment in Ten Holder, it ought to apply 18. In order to fill a gap in the regulation, both in relation to countries in which affil­ the Court could properly extend the scope iation to the social security scheme depends of Article 13 by means of its judgment in on the pursuit of a professional or trade Ten Holder to persons who have temporarily activity (as was the case in Ten Holder) and ceased to carry on an activity, since it was in relation to those in which affiliation necessary, as the Sociale Verzekeringsbank depends solely on residence. emphasizes, to prevent a migrant worker who established himself in another Member State during a temporary interruption of his activity from being subject to the legislation 15. The result would be that, in Germany of that Member State, or a frontier worker for instance, a national of another Member from ceasing in principle to be insured in

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20. Furthermore, in its judgments in 1 4 Perenboom ' and Luijten, and even in Ten Holder, the Court made it clear that the aim of Article 13 is to prevent a worker from 23. Article 9(1) of the regulation provides being 'insured over the same period under that: the legislation of more than one Member State". The problem underlying this case is quite different, namely the application of the législation of a single Member State to two successive periods in the life of one 'The provisions of the legislation of any person. Member State which make admission to voluntary or optional continued insurance conditional upon residence in the territory 21. Finally, in its recent judgment of 6 May of that State shall not apply to persons 1990 in Kits van Heijningen (Case C-2/89, resident in the territory of another Member [1990] ECR 1-1755), the Court stated as State follows :

2 — Judgment of 12 July 1979 in Case 266/78 Brunon v Landesverstcherungsanstalt Rheinprovinz [1975] ECR 2705, at p. 2711 et seq; judgment of 24 August 1980 in Case 110/79 Coonan v Insurance Officer [1980] ECR 1445; 24. In my view, it follows a contrario from judgment of 24 September 1987 in Case 43/86 Sociale Verzekeringsbank v De Rijke [1987] ECR 3611, at p. 3629. that provision that a transfer of residence to 3 — Judgment of 5 May 1987 in Case 102/76 Perenboom v the territory of another Member State may Inspecteur der Directe Belastingen [1977] ECR 815, at in fact affect a person's affiliation to a paragraph 11. 4 — Judgement of 10 July 1986 in Case 60/85 Luijten v Raad van Arbetd[1986] ECR 2365, at paragraph 15 5 — Emphasis added.

28. Finally, I would draw attention to the 'Save as otherwise provided in this regu­ adverse consequences which would arise for lation, invalidity, old-age or survivors' cash Member States with general social security benefits, pensions for accidents at work or schemes if the notion were recognized of occupational diseases and death grants 'unlimited affiliation'. Those consequences acquired under the legislation of one or are summarized in the Report for the more Member States shall not be subject to Hearing at the end of the Sociale Verzeker- any reduction, modification, suspension, ingsbank's observations concerning withdrawal or confiscation by reason of the Question 1. fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.' 29. For all those reasons, I may conclude that the question whether or not Mr and Mrs Daalmeijer continued to be insured under the Netherlands Old-age Law as 26. I consider that apart from the very from the time when they established their specific situations dealt with by the Court in residence in France must be decided exclu­ its judgments of 7 November 1973 in Case sively on the basis of the Netherlands legis­ 51/73 Smieja [1973] ECR 1213, 10 June lation. 1982 in Case 92/81 Camera [1982] ECR 2213 and 2 May 1990 in Case C-293/88 Winter-Lutzins [1990] ECR 1-1623, the lifting of the residence requirement provided for by that provision must be interpreted in 30. I therefore propose that the Centrale the manner specified by the Court in its Raad van Beroep's first question should be judgment of 20 October 1977 in Case 32/77 Giuliani [1977] ECR 1857, namely answered as follows: that it 'has no effect on the acquisition of the right to benefit'.

'If Question 1 is answered in the negative and/or Question 2 is answered in the affirmative, what would the answer be if the person referred to in Question 1 received a 37. I therefore propose that the Court benefit from the Netherlands during the answer Question 3 as follows: period in which he was residing in the territory of a Member State other than the Netherlands in connection with the termi­ nation of his last employment in the service of the Netherlands (a benefit which by 'The question whether an insured person virtue of national law did not result in his has remained affiliated to the old-age being insured under the Old-age Law)?' insurance scheme of his country of origin after settling in another Member State, having regard to the fact that during his period of residence in the territory of 34. I note that between the time when he another Member State he received a benefit ceased working and the date when he payable by his country of origin, falls to be reached the age of 65 Mr Daalmeijer was in decided on the basis of the legislation of the receipt of an allowance under the country of origin.' Netherlands Law on Allowances for Former Members of the Armed Forces. Had it been 6 — Sec the Report for the Hearing in Case 43/86 Sociale an invalidity pension, he would auto­ Verzekeringsbank v de Rijke [1987] ECR 3611, at p. 3614.

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OPINION OF MR MISCHO —CASE C-245/88

Conclusion

38. To recapitulate, the answers I propose to the questions submitted by the Centrale Raad van Beroep, Utrecht, are as follows:

'(1) When a former civil servant and his spouse have gone to reside in the territory of a Member State other than that in whose service he was last employed, where neither of them has carried on real and actual activities for the purposes of Article 13(2) of Regulation No 1408/71 and where they were not subject to the legislation of that other Member State in any other capacity by virtue of that provision, the question whether the legislation of the Member State of origin still applies to the couple falls to be decided in the light of the provisions of that legislation and not in the light of Article 13(2)(d) of Regu­ lation No 1408/71.