C-165/91

Rijksdienst voor pensioenen,

on the interpretation of Articles 3(c), 48 and 51 of the EEC Treaty, Article 4(1) of Council Directive 79/7/EEC of 19 December 1978, on the progressive implemen­ tation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), and of all other provisions which the Court may consider applicable in this case,

THE COURT,

composed of: O . Due, President, G. F. Mancini, J. C. Moitinho de Almeida, M. Diez de Velasco and D . A. O . Edward (Rapporteur) (Presidents of Chambers),

* Language of the case: Dutch.

I - 4686

— the Netherlands Government, by B. R. Bot, Secretary General in the Ministry of Foreign Affairs, acting as Agent,

— the Commission of the European Communities, by K. Banks and B. J. Drijber, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr van Munster, of the Netherlands Govern­ ment, represented by T. Heukels, Assistant Legal Adviser in the Ministry of For-

I - 4687

JUDGMENT OF 5. 10. 1994 — CASE C-165/91

— the German Government, by E. Röder, Ministerialrat in the Federal Ministry of the Economy, acting as Agent,

— the United Kingdom, by S. L. Hudson, of the Treasury Solicitor's Department, acting as Agent, together with N . Paines, Barrister,

— the Commission of the European Communities, by K. Banks and B. J. Drijber,

after hearing the oral observations of the Rijksdienst voor Pensioenen, represented by J. C. A. De Clerck, Assistant Adviser, acting as Agent, the Netherlands Gov­ ernment, represented by J. W. de Zwaan, Assistant Legal Adviser in the Ministry

I - 4688

VAN MUNSTER v RIJKSDIENST VOOR PENSIOENEN

3 Mr van Munster, a Dutch national, was employed in the Netherlands for 37 years and in Belgium for eight years. In each of those two Member States he obtained a retirement pension calculated solely in accordance with the rules of the State con­ cerned. His spouse was never employed during those two periods.

I - 4689

JUDGMENT OF 5. 10. 1994 — CASE C-165/91

4 In the Netherlands the Sociale Verzekeringsbank (hereinafter 'the Netherlands Social Insurance Bank') awarded Mr van Munster an old-age pension under the provisions of the Algemene Ouderdomswet (the general law on old-age benefits, hereinafter 'the AOW ).

5 Under the AOW, in the version entering into force on 1 April 1985, every married person, on reaching the age of 65, becomes entitled to a personal pension equiva­ lent to 50% of net minimum salary. If his or her spouse is not in work and has not yet reached the age of 65, the pension is increased by a supplement which may likewise amount to 50% of net minimum salary. Where a person has no spouse, the pension amounts to 70% of net minimum salary. The person entitled may not waive those benefits.

6 The Netherlands Social Insurance Bank accordingly awarded Mr van Munster an old-age pension on the basis of 100% of his net minimum salary, 50% on account of his being a married person and 50% on account of the fact that his spouse had not, at the date when the decision was taken, reached the age of 65.

10 On 10 October 1987, the day on which Mrs van Munster attained the age of 65, the Netherlands Social Insurance Bank awarded her, pursuant to the provisions of the AOW, an independent old-age pension, calculated on the basis of 50% of net minimum salary. As a necessary consequence, the Netherlands institution with­ drew the pension supplement which Mr van Munster had received until then. The total income of the couple was not, therefore, increased by the pension awarded to Mrs van Munster.

11 However, when the RVP learned that the Netherlands Social Insurance Bank had awarded Mrs van Munster a personal old-age pension, it reduced, by decision of 2 February 1988 and as from 1 October 1987, the amount of the retirement pen­ sion granted to her husband, by applying the 'single rate' rather than the 'house­ hold rate'. It did so on the ground that, according to the Belgian legislation, Mrs van Munster was in receipt of a 'retirement pension or an equivalent benefit'.

12 Mr van Munster appealed against the decision of the RVP to reduce his pension before the Arbeidshof, Antwerp, which decided to stay proceedings

I - 4691

JUDGMENT OF 5. 10. 1994 — CASE C-165/91

until the Court of Justice had given a preliminary ruling on the following questions:

I - 4692

VAN MUNSTER v RIJKSDIENST VOOR PENSIOENEN

Article 10(1) of Belgian Royal Decree No 50 and, second, of its practical applica­ tion to a situation such as that of Mr and Mrs van Munster.

Question 1

1 4 The essence of the first question is whether Community law, and in particular Articles 48 and 51 of the Treaty and also Article 4(1) of Directive 79/7, preclude national legislation which confers entitlement to a pension at the 'household rate' where the worker's spouse has ceased all gainful employment and is not in receipt of a retirement pension or equivalent benefit, but which applies only the less favourable 'single rate' where the worker's spouse is in receipt of a retirement pen­ sion or equivalent benefit.

15 Article 4(1) of Directive 79/7 lays down the principle of equal treatment for men and women in relation to calculation of social security benefits, including increases due in respect of a spouse. It was to comply with that provision and to apply the principle of equal treatment as widely as possible that the AOW was amended. The Belgian legislation, on the other hand, has not been amended to that effect.

20 It follows that neither the Community law on freedom of movement for workers, in particular Articles 48 and 51 of the Treaty, nor Article 4(1) of Directive 79/7, precludes national legislation which provides for a pension at the 'household rate' where the worker's spouse has ceased all gainful employment and is not in receipt of a retirement pension or equivalent benefit, but which applies only the less favourable 'single rate' where the worker's spouse is in receipt of a retirement pen­ sion or equivalent benefit.

I - 4694

VAN MUNSTER v RIJKSDIENST VOOR PENSIOENEN

Question 2

21 The essence of the second question is whether, and if so, how, the national court, when characterizing, for the purpose of applying a provision of domestic law (such as Article 10(1) of Royal Decree No 50), a social security benefit awarded under the statutory scheme of another Member State (such as the benefit awarded to Mrs van Munster), is bound to interpret its own legislation in the light of the rules of Community law.

22 In order better to understand the nature of the problem raised by the second ques­ tion, some specific points of the present case should be be stressed.

26 Fourthly,-the award, in the second State, of a personal pension to each of two spouses who have reached the age of 65 leaves unchanged the total income received by the couple in comparison with the income which two spouses over the age of 65 received before the reform of the AOW system on 1 April 1985.

27 While it is true, as pointed out in paragraph 18, that Article 51 of the Treaty leaves in being differences between the Member States' social security systems and hence in the rights of persons working in the Member States, it is not, however, in dis­ pute that the aim of Articles 48 to 51 of the Treaty would not be met if, through exercising their right to freedom of movement, migrant workers were to lose social security advantages guaranteed to them by the laws of a Member State. Such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see the judgment in Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 22).

28 As regards retirement pensions such as those in point in the main proceedings, it should be noted that both the migrant worker and the worker whose entire work­ ing life has been in only one State ('the non-migrant worker') acquire their pension entitlements progressively throughout their careers.

29 The only difference between them is that the non-migrant worker acquires the entirety of his pension entitlements tinder a single body of legislation, whereas the migrant worker acquires them in sections corresponding to successive periods of

33 That requirement implies that those authorities should ascertain whether their leg­ islation can be applied literally to migrant workers, in exactly the same way as to

I - 4697

JUDGMENT OF 5. 10. 1994 — CASE C-165/91

non-migrant workers, without ultimately causing migrant workers to lose a social security advantage and, consequently, discouraging them from actually exercising their right to freedom of movement.

34 When applying domestic law, the national court must, as far as is at all possible, interpret it in a way which accords with the requirements of Community law (see the judgment in Case 157/86 Murphy v Bord Telecom Eireann [1988] ECR 673, paragraph 11, and to the same effect the judgments in Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 26).

35 The answer to the second question must therefore be that when, for the purpose of applying a provision of domestic law, a national court has to characterize a social security benefit awarded under the statutory scheme of another Member State, it should interpret its own legislation in the light of the aims of Articles 48 to 51 of the Treaty and, as far as is at all possible, prevent its interpretation from being such as to discourage a migrant worker from actually exercising his right to freedom of movement.

THE COURT,

in answer to the questions referred to it by the Arbeidshof, Antwerp, by judgment of 19 June 1991, hereby rules:

1. Community law, in particular Articles 48 and 51 of the Treaty, and also Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the pro­ gressive implementation of the principle of equal treatment for men and women in matters of social security, does not preclude national legislation which provides for the right to a pension at the 'household rate' where the worker's spouse has ceased all gainful employment and is not in receipt of a retirement pension or equivalent benefit, but which applies only the less favourable 'single rate' where the worker's spouse is in receipt of a retire­ ment pension or equivalent benefit such as the pension awarded to Mrs van Munster by the Algemene Ouderdomswet.

2. When, for the purpose of applying a provision of its domestic law, a national court has to characterize a social security benefit awarded under the statu­ tory scheme of another Member State, it should interpret its own legislation in the light of the aims of Articles 48 to 51 of the EEC Treaty and, as far as

I - 4699

JUDGMENT OF 5. 10. 1994 — CASE C-165/91

R. Grass O. Due

Registrar President

I - 4700