C-360/97

NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN

OPINION OF ADVOCATE GENERAL COSMAS delivered on 2 February 1999

Summary

I — Introduction I - 1921

II — The legal context I - 1922

A — The national provisions I - 1922

A — The first question I - 1927

(a) The validity of the relevant provisions of the Annex I - 1929

(b) The implications of the interpretation of the relevant provisions of the

annex I - 1931

(c) The possible direct application of Articles 48 and 51 of the Treaty .. I - 1933

(d) The necessary clarification of the Vougioukas case-law I - 1940

1971 on the application of social security words, it is calculated pro rata temporis (type schemes to employed persons, to self- B legislation, as classified by the Court in the employed persons and to members of their Grahame and Hollanders judgment of 13 families moving within the Community, 1 and November 1997). 3 of Point 2(b) of Section J, relating to the Netherlands, of Annex 2 to Council Regula- tion (EEC) N o 574/72 of 21 March 1972 laying down the procedure for implementing Regulation N o 1408/71. 2 In particular, the Court is asked to state whether an insurance period completed in the Netherlands under a special scheme for civil servants must be treated as an insurance period completed (b) The Netherlands legislation under the general scheme, so as to enable a migrant worker within the Community, who was found to be incapacitated for work in another Member State, to receive pro rata Netherlands benefits.

3. The present case involves two different laws: II — The legal context

A — The national provisions

(1) The Algemene Burgerlijke Pensioenwet (General Law on Civil Pensions, 6 January 1966, 'the A B P W ) , in the version in force at the time when Mr Nijhuis was working in (a) German law the Netherlands. It is common ground that this was a special scheme applying only to civil servants. 4 Mr Nijhuis was insured in the Netherlands under this scheme alone, which, like all invalidity insurance schemes in the 2. Under the general scheme of the Ange- Netherlands, was a so-called risk scheme (type stelltenversicherungsgesetz (Law on Insurance A), where the entitlement to the benefit arises for Clerical Staff), the amount of an invalidity on the occurrence of the insured risk during benefit depends on the duration of insurance the insurance period. periods completed under that law. In other

(b) payment of benefits to persons resident in the territories of Member States.'

Β — The Community legislation

6. O n the basis of Article 51, the Council adopted Regulations Nos 1408/71 and 574/72, 4. Article 48 of the EEC (now the EC) Treaty the main aim of which is to coordinate the enshrines the principle of freedom of move­ laws of the several countries in the sector in ment for workers, but paragraph 4 states that question, so that freedom of movement for 'the provisions of this Article shall not apply workers does not have the effect of placing to employment in the public service'. those who exercise that freedom in a less

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favourable position than those who work in benefits are to be calculated in proportion to a single Member State. the periods of insurance completed under the legislation of each Member State to which the person concerned has been subject, including legislation where the amount of the invalidity benefit does not depend on the length of periods of insurance.

8. Article 40(1) of Regulation N o 1408/71 (in the version in force at the material time in this case), relating to the conditions for the grant of invalidity benefit where a worker has 10. With regard to the Netherlands legisla­ been subject to the legislations of different tion relating to insurance against incapacity Member States in succession, at least one of for work, Point 4(a) of Section J, relating to which does not cause the amount of benefits the Netherlands, of Annex VI to Regulation to depend on the duration of insurance periods N o 1408/71 (in the version in force at the (type A legislation, such as the Netherlands legislation in this case), refers for the calcula­ tion of benefits to Chapter 3, relating to old 6 — 'Where the legislation of a Member State which makes the age and death pensions, and in particular to granting of benefits conditional upon an employed person being subject to its legislation at the time when the risk mate­ Article 46, concerning the calculation of ben­ rialises has no requirements as to the length of insurance periods cither for entitlement to or calculation of benefits, efits by each of the national insurance institu­ any employed person who is no longer subject to that legisla­ tions in question. Under Article 46(2), the tion shall, for the purposes of this Chapter, be deemed to be still so subject at the time when the risk materializes, if at that time he is subject to the legislation of another Member State or, failing this, can establish a claim to benefits under the leg­ islation of another Member State. However, this latter condi­ tion shall be deemed to be satisfied in the case referred to in 5 — OJ 1983 L 230, p. 6. Article 48(1).'

Moreover, Article 84 of Regulation N o 1408/71 (in the version in force at the mate­ rial time in the main proceedings) provides — insurance periods completed after the for the exchange of information and for the age of 15 under the law of 11 December competent authorities and institutions of the 1975 on incapacity for work (AAW), Member States to lend each other their good provided that they do not coincide offices and to cooperate in the implementa­ with insurance periods completed by tion of the regulation.

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OPINION OF MR COSMAS — CASE C-360/97

By decision of 31 January 1990 the N A B , as 12. The appellant in the main proceedings, the institution responsible for the award of Mr Nijhuis, a Netherlands national, worked invalidity benefits under the WAO, and which in the Netherlands from 15 October 1968 to had been contacted by the competent German 1 October 1973 as a scientific research assist- authority, rejected his claim on the grounds ant with the Netherlands Organisation for that he was not insured under the WAO or Research in the Field of Pure Science in The the AAW when his incapacity for work arose Hague, and from 1 August 1973 to 1 April and that he could not rely on Regulation N o 1974 as a teacher in Tilburg. During these 1408/71 because, when he was employed in periods he was insured against the risk of the Netherlands, he was insured under the invalidity under the ABPW. Outside these ABPW scheme, which was a special scheme periods he did no work in the Netherlands, for civil servants and was outside the ambit of not even on a self-employed basis. that regulation.

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15. The appellant in the main proceedings with that section of the annex when referred the decision of the NAB to the Raad determining invalidity benefits? van Beroep te Amsterdam (Appeal Court, Amsterdam), which dismissed his action. He then appealed to the Centrale Raad van Beroep te Utrecht.

2. If so, is the competent institution for the determination of benefits on the basis of those periods the institution referred to IV — The questions referred in Point 2(b) of Section J of Annex 2 to Regulation (EEC) N o 574/72 or is it the competent institution under national law in regard to invalidity insurance for civil servants, notwithstanding the fact that the latter institution is not referred to in the said annex?'

that, according to the wording of the relevant abovementioned amendment of Regulation provisions of Annex VI to Regulation N o N o 1408/71 by Regulation N o 1606/98, to 1408/71 (in the version in force at the mate- grant Mr Nijhuis a right to pro rata benefits rial time), only insurance periods completed under the WAO as from 25 October 1998, under the WAO and AAW schemes can, since the date when the new provisions took effect. the entry into force of the WAO, be taken The same institution points out that it will into account for the purpose of Article 46(2) take account of insurance periods completed in conjunction with Article 45(4) of the regu- by him pursuant to the ABPW between 15 lation. Therefore the insurance periods com- October 1968 and 1 April 1974. pleted by Mr Nijhuis between 15 October 1968 and 1 April 1974 under the ABPW scheme cannot be taken into account, if only because they were completed after the entry into force of the WAO and before that of the AAW In view of this, it is clear that the national court is asking the Court of Justice to reply to the question whether the literal This declared intention on the part of the interpretation of the provisions in question is respondent in no way affects the subject- binding or whether the national court may, in matter of the main proceedings or, conse- one way or another, avoid it. quently, the usefulness of the reply to be given to the national court in so far as, in any case, the question arises as to whether Mr Nijhuis is entitled to Netherlands benefits for the period prior to 25 October 1998. 11

(a) The validity of the relevant provisions of the Annex

22. In particular, in the Vougioukas judgment cited in footnote 4, the Court observed that, by not introducing, following the expiry of the transitional period laid down for freedom of movement for workers, any coordination measure for extending the material scope of 20. Is a literal interpretation of the relevant Regulation N o 1408/71 to special schemes for provisions of Annex VI to Regulation N o civil servants and persons treated as such, the 1408/71 consistent with Articles 48 and 51 of Council had not fully discharged its obliga­ the Treaty in so far as such interpretation tion under Article 51 of the Treaty to set up leads to insurance periods completed under a system to enable migrant workers to over­ the special scheme for civil servants of the come obstacles with which they might be ABPW being disregarded and to Mr Nijhuis confronted in national social security rules. 1 3 being refused pro rata Netherlands benefits? Whereas, in the case of civil servants, their potential freedom of movement was enlarged by strict interpretation of the exception laid down by Article 48(4) of the Treaty, 1 4 the Council's prolonged hesitation in providing for the coordination of special insurance schemes for workers in that category has been

23. While finding that the prolonged failure to act was unjustified, the Court took the view that the validity of Article 4(4) of Regu- lation N o 1408/71 was not affected since, having regard to the Council's wide discre- tion with regard to the choice of the most appropriate measures for attaining the objec- tive of Article 51 of the Treaty, the Council 25. Consequently there appears to be no remained at liberty, for the purpose of coor- question of conflict between the relevant pro- dinating special schemes for civil servants and visions of Annex VI (in the version in force persons treated as such, to depart, in some at the material time) and Articles 48 and 51 respects at least, from the mechanisms pro- of the Treaty in so far as those provisions do vided for in the regulation . 1 5 not refer to the ABPW for determining the periods to be taken into account in order to calculate pro rata invalidity benefits. In addi- tion, the fact that the WAO does not apply to civil servants (Article 6) and that, under the Netherlands social insurance legislation, they were covered by the special scheme 24. As I said in my Opinion in the Grahame (ABPW) for the period in question from 15 and Hollanders case, cited in footnote 3, the October 1968 to 1 April 1974 does not affect above interpretation is consistent with the the validity of the provisions of the regula- nature of the regulation as a means of coor- tion but is a result, as I have already said, of dinating, not harmonising, the laws of the Member States relating to social security and it shows that the fact that a person is a civil servant who may exercise his freedom of 16 — See paragraph 48 of my opinion in the Grahame and Hol- landers case, cited in footnote 3. movement under Article 48 of the Treaty does In accordance with the foregoing, the fact that Mr Nijhuis not automatically guarantee him the benefit was employed in the public service could not lead, as he himself states, to limiting his freedom of movement within of the provisions of the regulation. That is the Community. However, the Court, modifying in this respect the position it adopted in the Lohmann judgment because, whereas the abovementioned article (Case 129/78 [1979] ECR 853, paragraph 3), found that the of the Treaty applies on the basis of the term 'civil servant' in Article 4(4) ofRcgulation N o 1408/71 refers not only to civil servants covered by the derogation objective characteristics of the employment provided for in Article 48(4). The Court thereby recognised that the scope ratione personae of the regulation includes all relationship with the public service, the regu- civil servants employed by a public authority who exercise lation applies by reason of a person's belonging their freedom of movement within the Community (see the Vougioukas judgment, cited in footnote 4, paragraph 21). However, it must be observed that the fact of being within the scope ratione personae of the regulation docs not auto- matically mean that it applies to such persons because its scope ratione materiae (in the version in force at the mate- 15 — See the Vougioukas judgment, cited in footnote 4, paragraph rial time) does not include the coordination of special schemes 35. for civil servants, such as that of the ABPW.

26. Just as, since the Vougioukas judgment, the Court has avoided ruling that provisions of Regulation N o 1408/71 are invalid, 18 so also, it appears, does it avoid confining itself to the literal wording of the provisions of the regulation, and rather seeks to give them a More particularly, would it be possible to purposive, 19 and sometimes even a maximal apply the Olivieri-Coenen judgment, cited in ist, 2 0 interpretation, so as to ensure the fullest footnote 11, to the facts of the present case? In that judgment, the Court held that it was clear from the provisions in question of Annex VI to Regulation N o 1408/71 (in the version 17 — For an assessment of the validity of Annex I to Regulation in force at the material time) that, on the N o 1408/71, see the judgment in Case C-266/95 Merino Garcia [1997] ECR I-3279, paragraphs 27 to 31, and the basis of the WAO, all periods of paid employ opinion of Advocate General Fennelly in that case (para ment or periods treated as such prior to 1

during those periods. This conclusion could because it was incompatible with that principle. not be altered by the fact that the scheme in 19 — In an interpretation of point 4(a) of Annex VI to Regula question was a special scheme for civil ser tion N o 1408/71, the Court held, in the Olivieri-Coenen judgment, cited in footnote 12, that the provisions of the vants. 2 2 In view of the abovementioned annex and the other provisions of the regulation must be interpreted together in the light of the purpose of that article, which is to contribute to freedom of movement for migrant workers, a principle which is one of the foundations of the Community (paragraph 16). With regard to the purposive interpretation of the regulation, see my opinion (paragraph 21 — See also the Grahame and Hollanders judgment, cited in 21 et seq.) in Case C-475/93 Thévenon [1995] ECR I-3813). footnote 3, paragraph 24. 20 — See, for example, the Grahame and Hollanders judgment, 22 — See the Olivieri-Coenen judgment, cited in footnote 12, cited in footnote 3, where, in relation to the interpretation paragraphs 15 and 16. As the Court observed in that judg- of 'periods of paid employment' and 'periods treated as ment, 'if the period of paid employment subject to the spe- such', compared with periods of military service completed cial scheme for civil servants or persons treated as such was before 1 July 1967, the Court found in effect that the provi- not treated as a period of insurance for the purposes of sions of the regulation could have a Community content, Annex V to the regulation [point 4(a) of the section on the that is to say, relatively independent of national law, and Netherlands], the person completing it would thereby suffer determined in relation to the objectives of Community leg- a disadvantage contrary to Article 51 of the Treaty whereas islation, i.e. the objectives of Articles 48 and 51 of the to take that period into account does not entail any overlap- Treaty (paragraphs 21 and 25 to 32). ping of different entitlements' (paragraph 17).

As the Commission points out, the interpre- Moreover, a purposive interpretation of the tation of the annex given in the Olivieri- annex, so as to take account of insurance Coenen judgment does not constitute an periods completed under the ABPW, seems exception to the exclusion of special schemes to be ruled out from the systematic view- for civil servants which is laid down by Article point. The relevant provisions of the annex 4(4) of Regulation N o 1408/71 because the were introduced in order to ensure that per- person concerned derives no pension entitle- sons who had worked before the WAO scheme ment from that scheme. O n the other hand, took effect 24 had uniform insurance cover periods completed before 1 July 1967 are similar to that of persons who completed taken into account for calculating benefits insurance periods under that scheme. Since under the general scheme, that of the WAO. the WAO came into force, only insurance In other words, those periods are treated as periods completed under the WAO or the periods of employment, not as insurance AAW schemes have been taken into account. periods, as expressly laid down by the rel- This applies particularly to periods completed evant provisions of the annex. Consequently under special schemes for civil servants. As the obligation to take them into account does the respondent institution in the main pro- not depend on the type of scheme by which ceedings and the Netherlands Government the person concerned was covered during point out, it would be truly paradoxical to those periods. 23

31. Indeed, although the said judgment did not question the validity of Article 4(4) of Regulation N o 1408/71, it found that the 29. For the same reasons, it could not be said validity, thus defined, of the exclusion of the that there is a lacuna in the relevant provi­ coordination of special schemes for civil ser­ sions of the annex with regard to insurance vants did not mean that 'a request for aggre­ periods completed under the special scheme gation is to be refused when it may be satis­ for civil servants after 1 July 1967 and up to fied, in direct application of Articles 48 and 1 October 1976. Although the Vougioukas 51 of the Treaty, without recourse to the judgment refers to a lacuna, this must be taken coordination rules adopted by the Council'. 2 6 to refer to the continued failure to implement Article 51 of the Treaty, that is to say, the Council's prolonged failure to take action to coordinate the special schemes for civil ser­ vants, and it does not refer to a gap in the law in the strict sense, which would arise only if the legislation concerned were found to be 32. Therefore, in order to decide whether the invalid or were annulled, and the gap would direct application of Articles 48 to 51 is pos­ have to be filled by the application of the sible and whether it actually gives rise to an former legislation or the application, by entitlement to Netherlands benefits pro rata analogy, of other rules, or again by the appli­ for Mr Nijhuis, it is necessary to examine cation of a more general rule.

26 — See the Vougioukas judgment, cited in footnote 4, paragraph 25 — See paragraph 23 of the present Opinion. 36.

33. According to the Vougioukas judgment, This last condition was easily to fulfil in the an essential condition for the direct applica- factual circumstances in point in the Vou- tion of Articles 48 to 51 is, as indicated above, gioukas judgment, which did indeed apply that it should be unnecessary to have recourse the Treaty directly. In that case there was to the coordination rules adopted by the doubt as to the application of the legislation Council, that is to say, in the present case the of a single Member State concerning the rec- provisions of Regulation N o 1408/71. This ognition of periods of employment completed condition is entirely consistent with the in that State or in another Member State for manner in which the Court found, in the the purpose of acquiring the right to a pen- abovementioned judgment, that Article 4(4) sion. In effect, it was not a question of tech- of the regulation is valid (in the version in nical coordination between different national force at the material time). 27 Therefore, even social security schemes, but primarily of the dismissing any suggestion of the direct appli- applicability ratione personae of Regulation cation of Article 51 as such, that is to say, as N o 1408/71 and the existence of a national a provision requiring the adoption of essen- provision entailing discrimination between tial measures of coordination (because the workers who had moved within the Commu- Council has a wide discretion with regard to nity and the others. choosing the measures for implementing the Treaty), nevertheless individuals may rely directly before the national courts on provi- sions which the Treaty requires the Council to apply through Article 51. 28 In other words, because the entire margin of discretion of the 34. "with regard to the judgments which fol- political authorities lies between the obliga- lowed the Vougioukas judgment, the Com- mission contends in effect that the Court does not appear to attach particular importance to 27 — See paragraph 23 of the present Opinion. the abovementioned condition of direct appli- 28 — Specifically, as commentators have also observed, individuals cation of the articles of the Treaty. The Com- may rely directly on the principles of freedom of movement for workers and equal treatment with regard to social secu- mission refers specifically to the judgment in rity, even as against Member States or in relation to provi- sions of a Council regulation which is adopted on the basis Joined Cases C-4/95 and C-5/95 29 in support of Article 51 and does not conform, in its wording or its of its argument that, first, direct application application, to the objectives of the Treaty. See Commentaire Mégret, Le Droit de la CEE, vol. 3. Libre circulation des personnes, des services et des capitaux. Transport, 2ème édi- tion, 1990. Éditions de l'Université de Bruxelles, Études européennes. Collection dirigée par l'Institut d'Études Europ- éennes, pp. 99 and 100. 29 — Stöber and Piosa Pereira [1997] ECR I-511.

of the Treaty is necessary to establish a right 36. Firstly, it would appear from a closer to pro rata benefits even for those who, like examination of the case-law referred to by Mr Nijhuis, belonged during the relevant the Commission that the Court also considers periods to special schemes for civil servants the adoption by the Community legislature and, secondly, that the provisions of Annex of the measures necessary for the implemen- VI to Regulation N o 1408/71 should be tation of the Treaty to be decisive for the pur- applied by analogy (because there were no pose of enabling the Treaty to be directly specific Community provisions for the coor­ applied. Thus in the Stöber and Piosa Pereira dination of special schemes for civil servants) judgment the Court expressly maintains the for calculating the abovementioned pro rata position it took in the Middleburgh judgment, benefits. according to which the legislation of a Member State which precluded the payment of child benefit in respect of the children resident in another Member State of a self-employed person was not incompatible with Article 52 of the Treaty because at the material time the Council had not yet adopted measures imple- 35. In some cases the Court does seem to menting that provision. 32 In other words, the apply Article 48(2) of the Treaty directly Court finds that direct application of Article without expressly considering whether the 52 is precluded if applying it requires the condition concerning the absence of a need to adoption of certain measures beforehand — have recourse to the coordination rules in the Middleburgh case, to ensure that the adopted by the Council 30 is fulfilled. In the benefits were actually used for the mainte- Stöber and Piosa Pereira judgment, it is true nance of dependent children and to avoid that the Court went so far as to state that the concurrent benefits — which the Community problems which could arise from the removal legislature had not taken. However, if — as (because it was contrary to Article 52) of a happened in the case which led tó the Stöber residence condition required by the legisla- and Piosa Pereira judgment — those mea- tion of a Member State for the calculation of sures have been taken, the national author- family benefits must be resolved by the appli- ities may apply them by analogy so as to fill cation, by analogy, of the provisions of Regu- the gap arising from the non-application of lation N o 1408/71. 31 However, the judg- national provisions incompatible with the ments mentioned above cannot be interpreted Treaty. as the Commission would wish in the present case.

Therefore the direct application of Article 48 et seq. of the Treaty means not only that the national provisions must not lead to discrimi- nation on grounds of nationality between nationals of the host State and nationals of 38. According to the Court's case-law, the other Member States, 35 but also that they body of provisions of the Treaty relating to must not lead to discrimination between those the free movement of persons is thus intended who exercise their freedom of movement and to facilitate the pursuit by Community citi- those who do not. 36 That is why, as the zens of occupational activities of all kinds Commission says in its observations, the throughout the Community, and precludes Court determines whether such discrimina- tion exists by comparing the situation of the

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40. Even assuming that using his freedom of movement within the Community has placed 38 — See paragraph 20 et seq. of this Opinion. Mr Nijhuis in a less favourable situation, the 39 — Shared responsibility, as the Commission contends in its pertinent question is to what must the respon­ observations, would not alter the approach I have taken in so far as, in the present case, direct application of the Treaty would concern only the portion of responsibility attaching to the national provisions. However, acceptance that respon­ sibility is shared by the regulation and the national provi­ sions shows an incipient trend towards attributing respon­ 37 — See the Vougioukas judgment, cited in footnote 4, para­ sibility for the coordination of insurance schemes to the graphs 40 ana 41. national legislatures. See paragraph 43 of this opinion.

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40 — See sections 24 and 25 of this Opinion. In the same connec- tion the Court has held that point 4 of Section I (now J) of Annex VI to Regulation N o 1408/71, as amended, is not contrary to Articles 48 and 51 of the Treaty in so far as it introduces a new factor, that is to say, the status of the employed person when the incapacity arises, in order to determine, pursuant to that provision, under which Neth- erlands legislation, the WAO or the AAW, the right to ben- 43. Secondly, it must be noted that to regard efits may be acquired: see the Drake judgment, cited in foot- note 34, paragraphs 18 and 20 to 25. With regard to the these points of the Netherlands legislation as legitimate right of the national legislature to regulate social security, see also the Stöber and Piosa Pereira judgment, causing discrimination against civil servants cited in footnote 29, paragraph 36. moving within the Community would amount 41 — The four points of the Netherlands legislation mentioned to imposing on the Netherlands an obligation above, particularly that mentioned by the Commission, the fact that the Netherlands legislation does not permit pro rata to abolish special schemes for civil servants benefits paid to Mr Nijhuis in Germany to be taken into account, cannot be likened to the national provisions con- and persons treated as such or to announce cerned in the abovementioned cases of Vougioukas (footnote that insurance periods completed thereunder 4), Grahame and Hollanders (footnote 3), Stöber and Piosa Pereira (footnote 29), Merino Garcia (footnote 17), Kemmler are taken into account by general insurance (footnote 30) and Masgio (footnote 34). Those cases relate to conditions for the grant or calculation of insurance ben- schemes of the Netherlands or, again, to efits in relation to the choice of the national insurance scheme and in conjunction with exercise of the freedom of move- abolish type A insurance schemes, or even to ment. In contrast, the points of the Netherlands legislation provide that the payment of pro rata benefits to which the possible application, in the present case, of the articles of the Treaty would relate can lead to discrimination in another Member State is to be taken into only in conjunction with a scheme of another Member State. In so far as a Member State adheres to the aims of the account. Treaty, it may choose whichever insurance scheme it prefers, and the scheme cannot be considered as the cause of dis- crimination merely because it has unfavourable consequences when it is applied in conjunction with a scheme of another Member State. On this point, the Court has held that 'by prohibiting every Member State from applying, within the field of application of the Treaty, its law differently on the ground of nationality, Articles 7 and 48 are not concerned with any disparities in treatment which may result, between Member States, from divergences existing between the laws of the various Member States, so long as the latter affect all persons subject to them in accordance with objective criteria The recognition of such an obligation would and without regard to their nationality' (see the judgment in lead, however, notwithstanding the spirit of Case 1/78 Kenny [1978] ECR 1489, paragraph 18).

45. Judging by its interpretation of the case-law following the Vougioukas judgment,

42 — As Advocate General Roemer observed in his Opinion in The reversal of interpretation to which I refer Case 14/68 Wilhelm and Others [1969] ECR 1, in particular p. 29, 'the only purpose of the prohibition against discrimi­ above is completely contrary to the Vou­ nation is to avoid the existence within one and the same Member State of different systems dependent on the nation­ gioukas case-law, which expressly precludes ality of those subject to them. O n the other hand, the pro­ direct application of the Treaty where it is hibition does not have as its function the prevention or the unfavourable consequences of the territorial limitation of the necessary to apply Regulation N o 1408/71, sovereignty and laws of the State, that is to say, to bring about the harmonisation of laws within the Community'. even if only by analogy. Furthermore, since, 43 — Moreover this requirement is not called into question either in particular cases falling outside the literal by the Commission which, firstly, suggests, as I have already said, the application by analogy — and therefore necessarily — of the regulation in order to calculate the benefit and, secondly, expressly points out in its written observations that it would not be appropriate to refrain from applying the relevant provision of Annex VI of the regulation because 44 — See P. Mavridis, 'L'arrêt Vougioukas: une révolution dis- that would render the other provisions of Regulation crete? (Réflexions sur la mobilité et la protection sociale des N o 1408/71 applicable, although it is impossible to find a agents publics en Europe)', Cahiers de Droit Européen 1998, provision in it which would compel the competent p. 191 if., in particular p. 206 ff. Netherlands institutions to grant benefits on the basis of 45 — See the Commission's proposal for the amendment of Regu- belonging to the special scheme for civil servants. lation N o 1408/71, cited m footnote 8.

49. First, it must be observed that the Court's 46. As is clear from much of what is said finding, in the Vougioukas judgment, that Article 4(4) of the regulation (which excluded above, the outcome of the present case, so far special schemes for civil servants and persons as the interpretation of the relevant provi- treated as such from the scope of the regula- sions of Annex VI of Regulation 1408/71 is tion and which was inseparably connected concerned (in the version in force at the with the provisions of Annex VI which are material time), depends on how the Court relevant in this case) is valid is in harmony will see fit to follow on from the Vougioukas case-law.

46 — See paragraph 26 of this opinion. 47 — See paragraph 35 of this opinion. 48 — The Court has constantly stated that Regulation N o 1408/71 is limited to coordinating national laws and does not have the object of harmonising them. See, for example, the judg- ments in Case 100/78 Rossi [1979] ECR 831, paragraph 13; Case 733/79 Laterza [1980] ECR 1915, paragraph 8; Vou- 47. Even though, as I have said, the Court gioukas, cited in footnote 4, paragraph 13; Stöber and Piosa Pereira, cited in footnote 29, paragraph 36, and Merino seems sometimes, on the one hand, to widen Garcia, cited in footnote 17, paragraph 27.

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50. Secondly, the coordination of special schemes for civil servants can under no cir­ cumstances be effected by the application by analogy of the provisions of Regulation N o 49 — See the Opinion of Advocate General Ruiz-Jarabo Colomer in the Vougioukas case, cited in footnote 4, paragraph 23. 1408/71 relating to the coordination of gen­ The obligation imposed by Article 51 corresponds to the obligation for positive action by the national authorities in eral schemes. Apart from the question whether connection with giving concrete expression to social security rights at the national level (status positivus). Although this there is a lacuna in the law, which is doubt­ obligation exists in principle, there are no measures which ful, 5 1 application by analogy also presup­ can usefully be called upon against authorities which have neglected to take steps leading to the concrete expression of poses a similitude of situations, which simply rights. In other words, a declaration that failure to adopt such measures is invalid would not lead to the requisite does not exist in this case. To claim that the implementation because there is no previous scheme which rules on the coordination of general schemes could be applied and the courts cannot take the place of the competent legislative or administrative authorities in their may in principle apply to special schemes is respective tasks. Only where the authorities take such mea­ sures can a power of review be exercised and the annulment hardly convincing. It is primarily because the of new measures may have a positive effect. In that case, the new measures may be reviewed on the basis of the purposes situations to be regulated are not at all similar, of the rights, as already formulated by the existing scheme. If those measures are annulled, it then becomes possible to and also because the differences between the apply that scheme. The foregoing considerations are con­ special schemes for civil servants in the firmed by the Court's case-law, which has found, first, that by providing for coordination measures, Regulation N o Member States were originally insurmount­ 1408/71 confers on workers 'rights which they would not otherwise enjoy and which thus help to ensure freedom of able, that the Court found that the Council's movement for workers in accordance with Article 51 of the Treaty' (see the judgment in Case C-62/91 Gray [1992] ECR 1-2737, paragraph 10, emphasis added) and, secondly, the power of review comprises safety mechanisms which have the effect that 'the Community rules on social security, introduced pursuant to Article 51 of the Treaty, must refrain from adding to the disparities which already stem from the 50 — See the Opinion of Advocate General Jacobs in the Hart­ absence of harmonisa tion of national legislation' (sec the mann Troiani case, cited in footnote 35. Pinna judgment, cited in footnote 18, paragraph 21). 51 — See paragraph 29 of this opinion.

53 — Therefore I do not think it necessary to examine the substance of the LISV's argument at the hearing that it follows from the eighth recital and from Articles 43a and 53a, which were added to the basic regulation by Regulation N o 1606/98, that the measures finally adopted by the Council for the coordination of special schemes for civil servants must not be treated as the application by analogy of Regulation N o 1408/71 (Article 45(4)) in the version in force at the mate-

firmed (see the Opinion of Advocate General Ruiz-Jarabo Colomer in the Vougioukas case, cited in footnote 4). 52 — Sec the Vougioukas judgment, cited in footnote 4, paragraph See also the Middleburgh judgment, cited in footnote 32, 32. where the Court was not in favour of the application by For the same reason, there can likewise be no question of analogy of the measures relating to employees or the provi- annulling an exception which would entail a return to the sions of Council Regulation (EEC) N o 3427/89 of 30 rule (with regard to the consequences of the Pinna judg- October 1989 (OJ 1989 L 331, p. 30), which amended Regu- ment, cited in footnote 18, see the judgment in Case 359/87 lation N o 1408/71 by bringing self-employed persons within Pinna II [1989] ECR 585, paragraphs 12 to 17, and the the scope of the latter, in spite of the fact that the amend- Opinion of Advocate General Lenz in that case, in particular ment, although subsequent to the periods in question, was paragraph 25), because there simply is no general rule coor- made before the Court's judgment was given (paragraph 14). dinating special schemes for civil servants from which cer- For confirmation of the Court's position, see the Stöber and tain classes of person, for example, are excepted.

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52. Just as it is not possible for the Court the reversal of the Vougioukas case-law, to itself to draw up the coordination rules which grant the application made at the hearing by the Community legislature ought to have the respondent in the main proceedings and adopted, so it would not be good for doubts by the Netherlands Government, by limiting 55 to subsist on the interpretation of the VOU- the retrospective effects of the judgment to gioukas judgment. Therefore it would not be persons who have already commenced legal advisable, from the viewpoint of legal cer­ proceedings or raised equivalent claims seeking tainty, to circumvent the conditions laid down the recognition of such a right to the aggrega­ by that judgment for the direct application of tion of periods. 5 6 the articles of the Treaty or to evade the ques­ tion of the validity of coordination regula­ tions adopted on the basis of Article 51 of the Treaty, in order to develop, in substance, by a process which often reflects an underlying tendency towards the harmonisation of national laws, a parallel body of case-law which, by means of the direct application of articles of the Treaty, would take the place of action by the Council. Β — The second question

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second. However, for the sake of complete­ idity insurance for civil servants would be the ness, I shall examine the second question, competent institution for determining the without prejudice to the foregoing arguments. entitlement to benefits which arose during 57 those periods.

56. If the Court considers that Mr Nijhuis should be paid pro rata Netherlands benefits, the institution responsible for making pay­ ment will be determined according to the legal basis adopted for the payment obligation, as the respondent in the main proceedings has observed. 59. In any case, the Court's reply will have to emphasise, as the Commission observes with reference to the case-law, that practical difficulties, owing to the absence of special rules for the payment of certain types of con­ tributions, must not prejudice the rights which individuals derive from the principles of the 57. If, on the basis of a broad interpretation social legislation of the Community. 5 8 Like­ of the annex to the regulation, the Court finds wise it must be observed that, as laid down that the periods in question completed under by Articles 84 and 86 of Regulation N o the ABPW must be taken into account under 1408/71 (in the version in force at the mate­ the WAO scheme, it would necessarily follow rial time), national authorities and institutions that the responsibility rests with the institu­ responsible for social security must in any tion referred to in point 2(b) of Section J of case cooperate and forward claims for ben­ Annex 2 to Regulation N o 574/72, which in efits to the proper institution if they consider the present case is the NAB (or, since 1 March that they themselves are not competent to 1997, the LISV). handle such claims, and this must not adversely affect the persons concerned with regard to time-limits and admissibility.

— As the reply to the first question is in the negative, it is unnecessary to reply to the second question.

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