C-308/93

The Algemene Ouderdomswet (General old- age insurance law, hereafter 'the AOW ), which was brought into force on 1 January 1957, established a pension system under which the amount of the old-age pension is, as a rule, calculated solely on the basis of accrued insurance years. Under the AOW all nationals of the Netherlands residing there are subject to compulsory insurance, includ­ The national court seeks, more specifically, ing those who are liable to pay income tax to establish whether the principle of equal because they are employed in that State. treatment for migrant workers and national workers enshrined in Article 3(1) of Regu­ lation (EEC) No 1408/71 is to be interpreted as meaning that a person who is not a national of the Netherlands and who has nei­ ther lived nor worked in that State during a certain period is none the less entided in respect of that period to the same reduction in contributions as is granted to a national Apart from making provision for compul­ making voluntary insurance contributions, sory insurance, the AOW allows for volun­ the former being a family member and/or tary insurance. The purpose of voluntary surviving spouse of a migrant worker. insurance is to permit pension entitlements to be acquired for the periods not covered by compulsory insurance. The conditions 1 — See the version consolidated by Council Regulation (EEC) governing voluntary insurance were adopted No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6). pursuant to Article 35 of the AOW in 2 — At the time when the events material to the case occurred, this provision was numbered Article 2 of Annex V(H). subsequent royal decrees concerning the

As the AOW was brought into force on 1 January 1957, it was clearly impossible to be insured before that date, with the further consequence that no one could have received a full old-age pension before the year 2007. The Netherlands legislature found a solution by making transitional arrangements, con­ tained in Articles 55 and 56 of the AOW, which allow those periods accruing between It should also be borne in mind that, pursu­ the insured person's fifteenth birthday and ant to Article 9 of the Royal Decree of 1 January 1957 to be regarded as periods of 24 February 1961, a married woman who insurance within the meaning of the AOW, makes use of her right to pay voluntary con­ provided that the person concerned satisfies tributions and who was or is married during three conditions: (a) he has lived in the

I-2102

BESTUUR VAN DE SOCIALE VERZEKERINGSBANK v CABANIS-ISSARTE

Netherlands between his fifty-ninth and in the Netherlands for an employer sixty-fifth birthdays (the 'six years' con­ established in that country, shall also be dition); (b) he is a Netherlands national or considered as periods of insurance com­ regarded as such (a condition which may not pleted in application of Netherlands leg­ of course be relied on as against Community islation for general old-age insurance. nationals availing themselves of freedom of movement for the purposes of Regulation No-1408/71); (c) he continues to live in the Netherlands after attaining 65 years of age (the 'present residence' condition, which however does not apply to those persons who have been continuously insured under the AOW between 1 January 1957 and the attainment of 65 years of age). (...)

I - 2103

OPINION OF MR TESAURO — CASE C-308/93

in pursuance of subparagraph (a), the Insurance Bank') in respect of the 29 years provisions of the two preceding not covered by insurance. That reduction subparagraphs shall apply mutatis related to the period from 13 May 1924 to mutandis. 23 November 1948, that is to say from her fifteenth birthday to the date on which she took up residence in the Netherlands, and also to the period from 15 July 1969 to 13 May 1974, that is from when she returned to France for good until she attained (...)' 65 years of age.

5. I now come to the facts of the case. On 23 November 1948 Mr and Mrs Cabanis, who were both French nationals, took up It is precisely for the latter period (1969- residence in the Netherlands on account of 1974) that the SVB gave the respondent the Mr Cabanis' occupation. There they lived, opportunity to acquire pension rights except for the period from 20 October through voluntary insurance and fixed the 1960 to 12 November 1963 (spent in France), relevant insurance premiums on the basis of until 15 July 1969, the date on which they the maximum amount payable, relying on returned to France for good. Mr Cabanis Article 3 of the Royal Decree of 22 Decem­ continued to work until 18 February 1969, ber 1971. that is until he reached 65 years of age, whereupon he was awarded a full pension under the AOW. On the same date his wife obtained a married person's pension under 4 the AOW.

6. Considering herself entitled — under Article 3 of Regulation No 1408/71 5— to make the same reduced contributions as Following Mr Cabanis's death on 7 October nationals, the respondent challenged the 1977, Mrs Cabanis-Issarte (hereafter 'the decision fixing the contributions before the respondent') was awarded a single person's Raad van Beroep (Social Security Court), pension under the AOW with effect from Amsterdam, which upheld her appeal. The 1 April 1978, which was reduced by the SVB appealed in its turn against that decision Bestuur van de Sociale Verzekeringsbank to the Centrale Raad van Beroep which, in (Board of the SVB, hereafter 'the Social order to resolve the dispute, referred the

Question 1

(b) because she should be treated as a family member or (ultimately) a survivor within the meaning of Article 2 of that regulation by virtue of the fact that — in accordance with Article 9 of the Royal Decree of 24 February 1961 at that time in 7. The point at issue is whether the principle force — she enjoyed insurance of equal treatment for national and migrant cover on the basis of her now workers, as laid down in Article 3 of Regu­ deceased spouse's payment of vol­ lation No 1408/71, allows someone in the untary contributions (for the period respondent's position to benefit from the from 20 October 1960 to reduction in contributions to which nation­ 12 November 1963)? als are entitled.

I-2105

OPINION OF MR TESAURO — CASE C-308/93

8. The national court refers to three different provisions, more specifically to Article 2 of As all the parties who submitted observa­ Regulation No 1408/71 and to Points 2(a) tions in these proceedings have pointed out and (e) of Annex VI(J) to the regulation, at length, however, that is not enough to from which the right to the reduction in extend the principle of equal treatment for contributions in point might be inferred. It is national and migrant workers to the respon­ self-evident that in order for the relevant dent. As is apparent from the settled case- provisions to be applicable, the respondent 7 law of the Court , whereas persons belong­ must be a person covered by Regulation No ing to the category of workers within the 1408/71, either as a worker or as a family meaning of the regulation can claim the right member or survivor. to benefits covered by the regulation as rights of their own, the members of a work­ er's family or his survivors can claim only derived rights, acquired through their status as family members or survivors.

It is scarcely necessary to point out that in 6 — The concepts of 'member of the family' and 'survivor' are defining the persons to whom Regulation defined respectively in Articles 1(f) and 1(g) of the regu- lation. No 1408/71 applies, Article 2(1) thereof pro­ 7 — See the judgment in Case 40/76 Kermaschek v Bundesanstalt vides for two clearly differentiated classes of für Arbeit [1976] ECR 1669, paragraph 7. To the same effect, see more recently the judgment in Case C-310/91 Schmid v beneficiaries, namely workers on the one Belgian State [1993] ECR 1-3011, paragraph 12.

The answer has to be no. While it is true that 10. Since all persons residing in the Nether­ in the period referred to by the national lands are covered directly and individually court the respondent was covered by volun­ by the AOW, from the 15th to the 65th year tary insurance by reason of the fact that her of age, irrespective of sex and marital status, husband had joined such an insurance it is clear that entitlement to a pension is not scheme, hence by virtue of her status as a a right acquired through status as a member member of his family, it is equally true that of the family, or survivor, of a migrant for the period here concerned, from 15 July worker, but is held in one's own right, so 1969 to 13 May 1974, she can claim no right that joining a voluntary insurance scheme in that capacity. During that period, the should, in principle, be open to everyone as respondent's husband had in fact ceased of right. working, was already in receipt of an old-age pension and did not even live in the Nether­ lands.

However, the national court refers (in para­ graph (b), Question 1) to the fact that during the period from 20 October 1960 to The respondent's ability to rely on voluntary 12 November 1963 the respondent was insurance in her own right constitutes, there­ (co-)insured under the AOW, in accordance fore, as regards the relevant period, a right with Article 9 of the Royal Decree of granted by Netherlands legislation to all 24 February 1961, as the wife of a those who wish to remain insured after they voluntarily insured person within the cease to be compulsorily insured which, in meaning of the AOW, and thus in her the respondent's case, occurred when she capacity as a member of his family. returned to France for good.

8 — I would refer in this connection to the judgment in Case 9 — The respondent has, however, benefited from the application 43/86 Sociale Verzekeringsbank v De Rijke [1987] ECR of that provision in so far as it attaches to Point 2(c) of the 3611, in which the Court held that a married woman could annex. The period from 1948 (when she settled with her hus­ not, under Point 2(c) of Annex VI, claim the right to be affil­ band in the Netherlands) to 1 January 1957 (the date on iated to a voluntary insurance scheme after the expiry of the which the AOW was brought into force) was in fact recog­ time-limit fixed in that respect by the AOW. nized as an insurance period for the purposes of the AOW.

I - 2108

BESTUUR VAN DE SOCIALE VERZEKERINGSBANK v CABANIS-ISSARTE

her in her capacity as a member of the family Member State'. Such a result might dis­ and/or surviving spouse of a migrant worker. suade Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to 1 that freedom. 1From that point of view, the Court has, for example, stated that there would be discrimination if the national legis­ lature were to define the conditions for the acquisition or retention of the right to bene­ 15. Consequently, the foregoing observa­ fits in such a way that they can in fact be ful­ tions lead me to conclude that neither Article filled only by workers of the Member State 2 of Regulation No 1408/71, nor Point 2 of 12 concerned. Annex VI(J), permit a person in the respon­ dent's circumstances to take advantage of the reduction in contributions accorded to nationals under the voluntary insurance scheme.

I-2109

OPINION OF MR TESAURO — CASE C-308/93

movement, between men and single women the fact that only nationals with a very mod­ on the one hand and married women on the est income or none at all may join the volun­ other. tary insurance scheme and receive a full pen­ sion, paying minimal contributions equal to just 5 % of the maximum contribution pay­ able. That also explains why the Netherlands legislature decided to restrict the opportu­ It should however be noted that the case nity to make reduced contributions to its before the Court is quite different, in that own nationals, a restriction which, needless the issue is not a refusal to recognize insur­ to say, by virtue of Point 2 of Annex VI(J) to ance periods completed, before the AOW Regulation No 1408/71 does not apply to was brought into force, by a married woman those who are workers within the meaning who was actually resident in the Netherlands of the regulation. during the relevant period, but simply the conditions for affiliation to the voluntary insurance scheme in respect of a period sub­ sequent not only to the entry into force of the AOW but also to the spouse's attainment 19. In the light of the foregoing consider­ of pensionable age. ations, therefore, I propose that the Court answer the questions referred by the national court as follows:

18. Admittedly, the Court may wonder whether, if the respondent's husband had (1) Article 3(1) of Regulation (EEC) No known, at the time when he settled in the 1408/71 is to be interpreted as not pre­ Netherlands, what her present situation cluding the application of national legis­ would be, that knowledge would have lation which restricts the right to a induced him to waive his right to freedom of reduction in contributions paid under a movement. voluntary insurance scheme to nationals and persons who are workers within the meaning of the regulation.