Súdny dvor Európskej únie·26.4.1994

C-12/93

ECLI:EU:C:1994:169

Súd: Súdny dvor Európskej únie
IČS: 61993CC0012
Zdroj: eur-lex.europa.eu ↗

DRAKE

OPINION OF ADVOCATE GENERAL TESAURO delivered on 26 April 1994 *

Mr President, validity of Point 4 of Annex VI, section J Members of the Court, (Netherlands), to Regulation No 1408/71.

1. The present case concerns a reference to the Court by the Centrale Raad van Beroep (Higher Social Security Court) for a prelim inary ruling on the compatibility with Arti cle 51 of the EEC Treaty of Point 4 of 2. A summary of the relevant national legis Annex VI, section J (Netherlands), to Coun lation is necessary in order to understand the cil Regulation (EEC) No 1408/71 of 14 terms of the question. June 1971 on the application of social secu rity schemes to employed persons, to self- employed persons and to members of their families moving within the Community 1 (hereinafter 'the regulation'). The alleged incompatibility stems from the fact that the provision in question may lead to a situation where, in order to obtain invalidity benefit under the legislation of a Member State, a (previously) employed person is obliged, In the Netherlands compulsory insurance is pursuant to national law, to meet an addi governed by two sets of rules: the Algemene tional requirement (in the present case, a Arbeidsongeschiktheidswet 2 (General Law specified level of earned income received in on incapacity for work: 'AAW') and the Wet 3 the year preceding the commencement of the op de Arbeidsongeschiktheidsverzekering incapacity for work), which is inoperative (Law on invalidity insurance: the 'WAO'). for the purposes of the national legislation to The AAW, which came into effect on 1 which the employee in question is still October 1976, is a national insurance scheme deemed to be subject within the meaning of to which, in principle, all residents are affili Article 45(4) of that regulation. ated. Neither the acquisition of entitlement to benefits nor the calculation thereof is sub ject to any condition with respect to the length of insurance periods. However, fol lowing an amendment with effect from 1 January 1980, the award of benefit under Thus, in essence, the question put by the that law is subject to the requirement that, national court calls for examination of the during the year preceding the commence-

* Original language: Italian. 1 — Sec the codified version contained in Council Regulation 2 — Law of 11December 1975, Staatsblad 674. (EEC) No 2001/83 (OJ 1983 L 230. p. 6). 3 — Law of 18 February 1966. Staatsblad 84.

I - 4339

OPINION OF MR TESAURO — CASE-12/93

ment of the incapacity for work, the person reason, could not obtain benefit under the insured received a specified amount in the AAW, was and is entitled to the full amount form of income from (or in connection with) of the WAO benefit. the pursuit of an economic or professional activity (Article 6). With respect to the latter point it should be noted that benefits in lieu of remuneration are treated as income for the purposes of the AAW; however, that does not apply to income in the form of social assistance. 3. Let me now turn to the relevant Commu nity law. As I observed, Article 51 of the Treaty requires the Council to adopt such measures in the field of social security as are necessary specifically to secure for migrant workers 'aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of The WAO, which came into effect on 1 all periods taken into account under the laws July 1967, governs compulsory insurance for of the several countries' (Article 51(a)). On employed persons against incapacity for the basis of that article the Council adopted work. In order to qualify for the relevant Regulation No 1408/71, the principal aim of benefits, the persons concerned must be sub which is to coordinate the various national ject to the legislation in question, that is to social security legislations, so as to ensure say, at the time when the risk insured against that the freedom of movement for workers materializes they must be engaged in gainful does not give rise to a situation in which employment. However, the acquisition of workers who exercise that right are thereby entitlement to benefit and the calculation placed at a disadvantage as compared with thereof are not subject to any requirement those who pursue their occupations in only with respect to the length of the insurance one Member State. periods. Insured persons who have been unfit for work for a continuous period of 52 weeks may receive benefit under the WAO; the amount awarded is calculated on the basis of the degree of invalidity and the level of daily remuneration. With respect to invalidity benefits in partic ular, one of the aims of Community legisla tion is to facilitate the coexistence of insur ance schemes based on the principle that the acquisition of entitlement to benefit follows upon materialization of the risk insured against (such as the Netherlands scheme) At the material time, if applications were with schemes based instead on the principle made at the same time for benefit under both that entitlement to benefit is cumulatively systems, the WAO benefit was paid only in acquired and therefore related to the length so far as it exceeded the amount of the AAW of insurance periods. In that connection, benefit. Nevertheless, a person entitled to Article 45(4) (Article 45(3) at the material benefit under the WAO who, for whatever time) of the regulation is especially impor-

I - 4340

DRAKE

tant: it provides that 'where the legislation of employed person within the meaning of a Member State which makes the granting of Article 1(a) of the regulation' (paragraph a); benefits conditional upon an employed per and in accordance with the provisions of the son being subject to its legislation at the time AAW 'if, when incapacity for work and the when the risk materializes has no require resultant invalidity occurred, the person con ments as to the length of insurance periods cerned was not an employed person within either for entitlement to or calculation of the meaning of Article 1(a) of the regulation' benefits, any employed person who is no (paragraph b). It is useful to note that those longer subject to that legislation shall, for the procedures were so amended when Regula purposes of this chapter, be deemed to be tion No 1408/71 was extended to cover self- still so subject at the time when the risk 5 employed persons — for the specific pur materializes, if at that time he is subject to pose, therefore, of also bringing benefits the legislation of another Member State or, granted under the AAW within the compass failing this, can establish a claim to benefits of Community law. under the legislation of another Member State'. 4 Article 45(6) makes identical provi sion with regard to self-employed persons, the only difference being that no mention is made therein of the alternative possibility alluded to in the passage I have emphasized.

4. I shall now turn to the facts of the case. Section J(4) of Annex VI to Regulation Mr Drake is a citizen of Czechoslovakia who No 1408/71, the provision at issue in the was naturalized in the Netherlands under the present case, lays down special procedures Law of 20 May 1975. Between 24 Octo for the application of the Netherlands legis ber 1968 and 5 November 1971, he com lation relating to incapacity for work. For pleted insurance periods under the WAO our purposes, suffice it to say that the provi scheme totalling 3 years and 12 days. How sion in question provides that, for the pur ever, between 30 November 1971 and 23 pose of applying Article 46(2) of the regula October 1980, he was affiliated, by reason of tion (the rules governing payment of his employment in Germany, to the German benefits), the competent institution must fix invalidity insurance scheme. According to the amount of cash benefits in accordance the order for reference, Mr Drake ceased with the provisions of the WAO 'if, when work after the last-mentioned date and incapacity for work or the resultant invalid until 1 July 1984 received no benefits in lieu ity occurred, the person concerned was an

5 — See Council Regulation (EEC) No 1390/31 of 12 May 1981 extending to self-employed persons and members of their 4 — My emphasis. families Regulation (EEC) No 1408/71 (OJ 1981 L 143, p. 1).

I - 4341

OPINION OF MR TESAURO — CASE-12/93

of remuneration. By decision of 24 rule on the validity of section J(4) of Annex March 1986, his invalidity was officially rec VI to the regulation. ognized by the competent authorities in Ger many, who granted him as from 1 July 1984 an Erwerbsunfähigkeitsrente (pension for incapacity for work), calculated on the basis 5. That said, it must therefore be established of insurance periods completed in Germany. whether a provision (section J (4) of the Annex) which, at least at first sight, limits the scope of Article 45(4) of the regulation, is lawful and, above all, whether such a provi sion, to the extent that it would prevent the aggregation of the rights to which the previ Following an application for benefit filed in ously employed person is entitled, is incom the Netherlands, the Nieuwe Algemene Bed patible with Article 51 of the Treaty and rijfsvereniging (the New General Profes therefore invalid. sional and Trade Association: the 'NAB'), which is the Netherlands body responsible for implementing the regulations, assessed whether Mr Drake was entitled to invalidity benefit on the basis of his insurance in the It is appropriate to begin with the observa Netherlands, and concluded that as from 31 tion that Article 45(4) of the regulation really August 1984 he was to be deemed unfit for does no more than to introduce a legal 'fic work for the purposes of both the WAO and tion', specifically in order to take into AAW. Nevertheless, by decision of 18 account the fact that the acquisition of ben November 1986, Mr Drake's application was efit under the WAO is independent of the rejected on the ground that, at the time when length of insurance periods but depends on his incapacity for work commenced, he was the materialization of the risk insured not an employed person and could not against; that is to say, in order to prevent the therefore claim entitlement under the WAO. negative consequences which could ensue for The NAB also ruled that Mr Drake was inel those workers who in the course of their igible for benefit under the AAW because he working life have been subject to both types had not been in receipt of income during the of scheme. The legal fiction resides in the year preceding the commencement of his fact that, as has already been explained, any incapacity for work. worker who is no longer subject to a statu tory scheme based on the materialization of risk is deemed to be still so subject at the time when the risk materializes, if at that time:

Mr Drake challenged that decision before the Raad van Beroep (Social Security Court), Amsterdam, which upheld his claims. The (a) he is subject to the legislation of another NAB appealed in turn against that judgment Member State; or to the Centrale Raad van Beroep which, in order to resolve the dispute, considered it appropriate to seek a preliminary ruling (b) he can establish a claim to benefits from the Court of Justice. As I have already under the legislation of another Member explained, the question calls for the Court to State.

I - 4342

DRAKE

If that rule were applied in the case of 6. Now that the terms of the question have Mr Drake, it would follow that, since been clarified, the first difficulty to be con he receives invalidity benefits under the sidered is the relationship between the rele legislation of another Member State, he vant provisions contained in the body of the would also be entitled to benefits under the regulation and those contained in Annex VI WAO. That is incontestably what would to the regulation, particularly regarding the have been the outcome before 1 July 1982, question whether provisions of the annex at since until that date it was sufficient, in order issue may lawfully limit the scope of Arti to establish entitlement to benefits under the cle 45(4) of the regulation. In that connec WAO, to satisfy one of the two conditions tion, it must first be recalled that, as the set out in Article 45(4) of the regulation. Court has observed, 'the provisions of Reg ulation No 1408/71, and in particular those of Annex VI thereto, were adopted to imple ment Article 51 of the EEC Treaty and must be interpreted in the light of the objective of Article 51, which is to contribute to the establishment of the greatest possible free 6 dom of movement for migrant workers'. In my opinion, that statement implies that no hierarchical relationship exists between those provisions: what is important is that they should be interpreted, where possible, in conjunction with Article 51 of the Treaty and — above all — in such a way that they do not obstruct its aims.

However, as from 1 July 1982, the relevant legal framework was changed by the amend ment to the annex in question, which was occasioned by the extension of Regulation No 1408/71 to cover self-employed persons. The relevant section of the annex now pro Although, admittedly, the Court has consis vides that only those persons who are tently held that Article 51 of the Treaty 'actively' employed when the risk insured envisages the coordination, rather than the against materializes are entitled to benefits harmonization, of legislations and therefore under the WAO. Otherwise, benefits are allows differences to remain between the only available under the AAW, provided — social security schemes of the Member of course — that claimants meet the income States, 'it is also settled that the aim of Arti requirement, that is to say, they have cles 48 to 51 would not be attained if, as a received income from or in connection with consequence of the exercise of their right to work in the year preceding the commence freedom of movement, workers were to lose ment of the incapacity for work. Thus Mr the advantages in the field of social security Drake is not eligible for benefits either under the WAO, since he was not employed when the risk materialized, or under the AAW, since he does not meet the income require 6 — See Case C-293/8S Winter-Lutzins[1990] ECR I-1623, para graph 13. Similarly, see Case C-282/91 De Wit [1993] ECR ment stipulated by Article 6 of the AAW. I-1221, paragraph 16.

I - 4343

OPINION OF MR TESAURO — CASE-12/93

guaranteed to them by the laws of a single in which Mr Drake finds himself does not 7 stem from the fact that he exercised his right Member State'. Such a consequence might discourage Community workers from exer to the freedom of movement of workers as cising their right to freedom of movement guaranteed by the Treaty, but from the fact and would therefore constitute an obstacle to that he had ceased work of any kind long 8 that freedom. In that connection, the Court before the incapacity for work first com has, for example, pointed out that discrimi menced. nation arises whenever the national legisla ture defines the conditions for the acquisi tion or retention of the right to benefits in such a way that they can in fact be fulfilled only by nationals of the Member State con cerned or if it defines the conditions for loss or suspension of the right in such a way that they can in fact be more easily satisfied by The facts of the case before us are therefore 10 nationals of other Member States than by quite different from those of Blottner — those of the State of the competent institu cited by the Greek Government in support tion. 9 of its claim that section J(4) of Annex VI to Regulation No 1408/71 is unlawful — in which the applicability of Article 45(3) of the regulation to the plaintiff in the main pro ceedings was indeed challenged, but on the ground that she had completed insurance periods before the regulation entered into effect and under a different scheme from that in force at that time. Quite rightly, therefore, the Court stated that, in those circumstances, the plaintiff was entitled to benefits under the WAO.

7. Plainly, that is not true of this case. On the contrary, a person who had pursued his occupation only in the Netherlands and who had ceased work before the risk insured against materialized would find himself in the same circumstances as Mr Drake and, more generally, in the same circumstances as 8. In the same context, the national court those who, in exercise of their right to free also queries the lawfulness of introducing a dom of movement, have been subject at the further condition (subsequent to the period same time to both a scheme based on risk in which the person concerned was subject and a scheme based on the cumulative acqui to the legislation in question), such as that sition of rights. In other words, the situation concerning the receipt of a specific level of earned income during the year preceding the

7 — See inter alia Case C-349/87 Paraschi [1991] ECR 1-4501, paragraph 22. 10 — See Case 109/76 Blottner [1977] ECR 1141, in particular 8 — In that connection see, most recently, Joined Cases C-45/92 paragraphs 11, 12, 15, 16 and 17. In Blottner another point and C-46/92 Lepore and Scamuffa [1993] ECR 1-6497, para at issue was the applicability of Article 45(4) (Article 45(3) graph 21. at the time) of Regulation No 1408/71 to a person who had ceased working before the risk insured against materialized. 9 — See Parascbi, cited above, paragraph 23.

I - 4344

DRAKE

commencement of the incapacity for work, the national court refers in the order for ref since a requirement of that nature is inoper erence, is an objective condition which is ative for the purposes of the national legisla applied to national workers and those from tion to which the worker in question is other Member States alike; it does not seem deemed still to be subject within the meaning possible therefore to declare it unlawful from of Article 45(4) of the regulation. the point of view of Community law.

In that connection, suffice it to say that, as the Court has consistently held, Article 51 of 9. All things considered, there seems no rea the Treaty and Regulation No 1408/71 pro son to doubt the validity of section J(4) of vide only for the aggregation of insurance Annex VI to the regulation, inasmuch as the periods completed in different Member failure to obtain benefits in this case is based States and do not regulate the conditions on objective requirements imposed by under which those insurance periods are national legislation and applied equally to constituted; the conditions governing the those who have pursued their occupation right or obligation to become a member of a only in the Member State in question, which social security scheme are a matter to be means, most significantly, that the conse determined by the legislation of each Mem quences which ensue for workers who have ber State, provided always that there is no exercised their right to freedom of move discrimination in that connection between ment do not conflict with the aims of Arti the nationals of the host State and those of cles 48 to 51 of the Treaty. other Member States. It follows that Com munity law does not in principle prevent the national legislature from amending the con ditions for the grant of an invalidity pension, even if it makes them stricter, provided that the conditions adopted do not give rise to any overt or disguised discrimination 1 between Community citizens. 1 10. Lastly, there remains to be considered the marginal possibility described by the Commission in its written observations, that is to say, the possibility that in certain cases even a person who was employed when the risk insured against materialized might nev ertheless be ineligible for benefits under the WAO for the simple reason that he had first The income requirement imposed by the been declared unfit for work in a Member Netherlands legislature for the purposes of State where the insurance scheme in force obtaining benefit under the AAW, to which was based on the cumulative acquisition of rights. In those circumstances, he would no longer be an employed person when his 11 — See Parsscbl, cited above, paragraphs 15 and 16. incapacity for work was recognized in the

I - 4345

OPINION OF MR TESAURO — CASE-12/93

Member State where the insurance scheme in stances when implementing the rules in force was based on risk; a further possible question, it would be too restrictive and consequence could be that, by failing to meet based on an excessively formal interpreta the income requirement, he might also be tion. In that connection I feel that on this ineligible for benefits under the AAW. occasion I need only point out that the pro vision at issue in the present case, which must in any case be read in the light of Arti cle 45(4) of the regulation and — more gen erally — in the light of the purpose of Arti Obviously that situation is fundamentally cle 51, cannot in any event be interpreted in different from this case, since in essence it such a way as to penalize those who have concerns a person who is 'actively' employed exercised their right to free movement by when the risk insured against materializes. It comparison with those who have been sub is nevertheless clear that, if the Netherlands ject to only one insurance scheme in only authorities were to exclude such circum one Member State.

11. In view of the foregoing I propose that the Court give the following answer to the question submitted by the Centrale Raad van Beroep , Utrecht :

Consideration of the question submitted for a preliminary ruling has not revealed any factors capable of affecting the validity of section J ( Netherlands )( 4 ) of Annex VI to Regulation No 1408 / 71 .

I - 4346