C-282/91

My Lords, (1950-1959), the United States (1959-1963), Members of the Court, Indonesia (1963-1965), Australia (1965- 1969), Hong Kong (1969-1972), India (1972- 1975) and Ecuador (1976-1977). He resigned on 1 August 1978 and went to live in Ireland. O n 10 June 1985 he attained the age of 1. In this case the Hoge Raad has requested 65 years and was awarded an old-age pen- a preliminary ruling on the interpretation of sion under the Algemene Ouderdomswet point 2(a) of Part J of Annex VI to Council (Law on the general old-age pension scheme, Regulation (EEC) N o 1408/71 of 14 June hereafter 'the AOW'). 1971 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community (as amended and updated by Council Regu- lation (EEC) N o 2001/83 of 2 June 1983; OJ 1983 L 230, p. 6). 3. That Law, which came into force on 1 January 1957, provides that anyone who attains the age of 65 years is entitled to a full old-age pension if he has been insured for 50 years between his 15th and 65th birth- 2. The respondent in the main proceedings, days. Insured persons are (a) residents and Mr A. de Wit, is a Dutch national who was (b) non-residents who are subject to income born on 10 June 1920. He resided in the tax as a result of a salaried activity performed Netherlands until 20 November 1945, on in the Netherlands. The full pension is which date he became a civil servant in the reduced by 2 % for each year in which the Netherlands War Ministry and was posted to person concerned was not insured (Article Germany. O n 27 October 1947 he was offi- 13(1) of the AOW). cially removed from the population register of the place at which he had previously resided in the Netherlands. At some point thereafter he was transferred to the Ministry of Foreign Affairs and in 1950 he was posted to South Africa. He remained in the diplo- 4. Article 6(1)(c) of the A O W originally matic service of the Netherlands for the next provided that a Dutch national who resided 28 years and, as appears from a document in abroad and received a salary from the State the Hoge Raad's case file, served in a variety in respect of employment performed abroad of foreign locations, namely: South Africa was also an insured person. As from 1 Janu- ary 1965 that provision was repealed and replaced by Article 3(4) of the AOW, which * Original language: English. provided that:

6. It is in relation to the period before the entry into force of the A O W on 1 January 1957 that Mr de Wit's status is problematical. Point 2(e) provides: In order to make it possible for persons who had already attained the age of 15 on that date to obtain a full pension by their 65th birthday Articles 55 and 56 of the A O W 'The provisions referred to in (a), (b), (c) and contained transitional provisions. Those pro- (d) shall be applied only if the person con- visions allowed the years between such a cerned has resided for six years in the terri- person's 15th birthday and 1 January 1957 to tory of one or more Member States after the be treated as insured periods on condition age of 59 years and for as long as that person that the person concerned resided in the is residing in the territory of one of these Netherlands, the Netherlands Antilles or Member States.' Aruba during a period of six years after attaining the age of 59 and that he resides in the Netherlands at the time when he claims the pension. Mr de Wit does not satisfy 8. O n the basis of that provision the compe- either of those conditions, having resided in tent institution (the Sociale Verzekerings- Ireland since the age of 58. bank, hereafter 'the SVB') was willing to regard Mr de Wit as having been insured from 10 June 1935 (his 15th birthday) to 27 October 1947. But it refused to treat him 7. Were it not for Community law, it as having been insured between 27 October appears that Mr de Wit would have no pen- 1947 and 1 January 1957 or between sion in respect of the period before 1 January 1 August 1978 and 10 June 1985 on the 1957. The question then is whether Regu- ground that he was not resident in the lation N o 1408/71 can avail him in respect of Netherlands in those periods. Accordingly,

his pension was fixed at 68% of the full pen- Annex VI to Council Regulation N o sion (i. e. 100% minus 32% on account of 1408/71 of 14 June 1971 be interpreted as the 16 years in which he was not insured). referring exclusively to actual residence in the territory of the Netherlands or does it also include the notional residence in Neth- erlands territory of a Netherlands national residing outside the Kingdom in the service 9. It does not seem to be disputed that the of a body governed by Netherlands public SVB was entitled to reduce Mr de Wit's pen- law as provided for in (former) Article 3(4) sion in respect of the second period of non- of the A O W ? ' insurance (i. e. the period from 1 August 1978 to 10 June 1985 when he was resident in Ireland following his retirement). The dis- pute between the parties concerns the ques- tion whether the SVB was entitled to reduce Mr de Wit's pension in respect of the period from 27 October 1947 to 1 January 11. At first sight it is perhaps surprising that 1957 when he was in the employ of the Regulation N o 1408/71 should have any- Netherlands Government in Germany and thing to say about the question whether Mr South Africa. de Wit's residence in a non-member State (South Africa) before the creation of the Community should affect his pension or not. The same may be said of Mr de Wit's resi- dence in Germany before the creation of the 10. Mr de Wit challenged the SVB's decision Community. This does not seem to have before the Raad van Beroep, which dismissed much to do with the free movement of his claim. H e appealed successfully to the workers provided for in Article 48 et seq. of Centrale Raad van Beroep. That court held the Treaty. It was, of course, in order to that for the purposes of Annex VI, Part J, facilitate the free movement of workers that point 2(a), of Regulation No Regulation N o 1408/71 was adopted, pursu- 1408/71 account must be taken of the ant to Article 51 of the Treaty. notional residence provided for in Article 3(4) of the A O W (repealed with effect from 1 January 1985), which stipulated that a Netherlands national residing outside the Kingdom who was employed by a body governed by Netherlands public law was deemed to be resident in the Netherlands. 12. There is, however, a good reason why Mr de Wit should therefore be treated as res- Regulation N o 1408/71 should have some- ident in the Netherlands in the period in thing to say about such matters. If Mr de question. The SVB appealed to the Hoge Wit had resided in the Netherlands during a Raad, which has requested a preliminary rul- six-year qualifying period after his 59th ing on the following question: birthday, the years prior to 1 January 1957 would have been treated as insured periods under Article 55 of the A O W and he would have enjoyed a pension in respect of those years under national law alone, with- 'Must the expression "resided in the territory out recourse to Community law. He lost the of the Netherlands" in point 2(a) of Part J of benefit of the transitional provisions of

Articles 55 and 56 of the A O W because he 14. The SVB, the Netherlands Government lived in Ireland after the age of 59. Thus the and the Commission all reject the idea that purpose of point 2(a) of Part J of Annex VI the expression 'residence' in the aforesaid is to limit the extent to which a person may point 2(a) should be interpreted in the light be deprived of the benefit of those provi- of national law. They concur that it should sions by reason of his having resided in a be construed as an independent concept of Member State other than the Netherlands Community law, but do not agree as to the

The Commission, on the other hand, considers that a person should be deemed to have been resident in the Netherlands, under point 2(a), whenever there was a sufficiently strong link between him and the Nether- lands; such would be the case if someone were employed abroad by the Netherlands Government and remained subject to Neth- erlands legislation, in particular in the field 13. The effect of the relevant provisions of of social security. Part J of Annex VI is to allow the Nether- lands to reduce a person's pension in respect of periods prior to 1957, on the ground that he did not reside in the Netherlands for six years after his 59th birthday; but if that per- son resided in another Member State during that six-year period his pension may only be reduced in respect of periods before 1957 in which he did not have a sufficient link with 15. Mr de Wit, when invited to submit writ-

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DE WIT

hension, Mr de Wit proceeded to put for- by Regulation N o 1408/71 itself (see Article ward a number of cogent arguments in 1(h)), though the definition is unfortunately favour of treating him as resident in the not helpful for the purposes of the present Netherlands between 1947 and 1957: case. It is true that Annex VI seems to have a different function compared with the general scheme of the regulation, but there are none the less good reasons for interpreting the — First, he did not go to Germany volun- term 'residence' in that annex independently. tarily, but was posted there by the Neth- As the Commission has pointed out, if the erlands War Ministry. term were interpreted by reference to national law, there is a danger that a person would be considered resident in more than one Member State or in no Member State at — Secondly, he was always treated by the all. War Ministry and later the Ministry of Foreign Affairs as being resident in the Netherlands.

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OPINION OF MR JACOBS — CASE C-282/91

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DE WIT

SVB that from 1 September 1950 to 31 July words, is whether the Netherlands Govern- 1978 Mr de Wit was an official in the foreign ment, by taxing his salary and including him service employed at various diplomatic mis- within its social security scheme, claimed sions abroad and that throughout that period privileges over him and accepted responsibil- he was compulsorily insured under the rele- ities towards him that countries normally vant Netherlands legislation, in particular the exercise only in relation to their own resi- AOW. At the hearing counsel for the Neth- dents. If it did so, then he should be deemed erlands Government questioned the accuracy to have been resident in the Netherlands for of that information, pointing out that Mr de the purposes of the provision in question. Wit could not have been insured for old-age benefits under the A O W prior to its entry into force in 1957. But the issue is not 21. Indeed any other interpretation might whether Mr de Wit was paying pension con- lead to arbitrary results: thus it would seem tributions before 1957. The issue is whether arbitrary if the pension entitlement of a for- the Netherlands Government was treating eign ministry employee depended on him as if he were resident in the Nether- whether he was posted abroad or remained lands, in particular for the purpose of income in the Netherlands at particular periods in tax and social security. The issue, in other his career.

Conclusion

22. Accordingly, I am of the o p i n i o n that the question referred t o the C o u r t b y t h e H o g e R a a d should be answered as follows: