C-360/97

JUDGMENT OF 20. 4. 1999 — CASE C-360/97

JUDGMENT OF THE COURT 20 April 1999 *

In Case C-360/97,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Centrale Raad van Beroep (Netherlands) for a preliminary ruling in the proceedings pending before that court between

Herman Nijhuis

and

T H E COURT,

composed of: G. C. Rodríguez Iglesias, President, P. J. G. Kapteyn, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G. E Mancini, J. C. Moitinho de Almeida, C. Gulmann, L. Sevón and M. Wathelet (Rapporteur), Judges,

Advocate General: G. Cosmas, Registrar: H. A. Rühi, Principal Administrator,

after considering the written observations submitted:

— by Mr Nijhuis,

— on behalf of the Bestuur van het Landelijk Instituut Sociale Verzekeringen, by C. J. R. A. M. Brent, Administrator of the Gemeenschappelijk Administratie Kantoor (GAK) Nederland BV, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 2 February 1999,

gives the following

Judgment

1 By order of 24 September 1997, received at the Court on 22 October 1997, the Centrale Raad van Beroep (Higher Social Security Court) referred for a preliminary ruling under Article 177 of the EC Treaty two questions concerning the interpreta­ tion of Point 4(a) of Section J of Annex VI to Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Com­ munity, and of Point 2(b) of Section J of Annex 2 to Council Regulation (EEC) N o 574/72 of 21 March 1972 laying down the procedure for implementing

I -1948

NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN

I -1949

JUDGMENT OF 20. 4. 1999 — CASE C-360/97

5 Under Article 6 of the WAO, civil servants and military personnel are excluded from the scope of that Law. Such persons have, however, been covered, since 1 October 1976, by the Algemene Arbeidsongeschiktheidswet (General Law on Incapacity for Work) of 11 December 1975 (hereinafter 'the AAW'), which applies to all residents.

The Community legislation

6 Article 4(4) of Regulation N o 1408/71 provides that that regulation does not apply to special schemes for civil servants and persons treated as such.

7 Article 40 of Regulation N o 1408/71 governs the award of invalidity benefits to workers who have been successively subject to two types of legislation: on the one hand, legislation such as the WAO and AAW, mentioned in Annex IV to Regula­ tion N o 1408/71 as belonging to the legislation referred to in Article 37(1) thereof under which the amounts of invalidity benefits are independent of the length of periods of insurance (hereinafter 'Type A legislation'), and, on the other hand, leg­ islation, such as the German legislation applied in the case in the main proceedings, under which the amounts of benefits depend on the length of the periods of insur­ ance (hereinafter 'Type Β legislation').

10 Point 4(a) of Section J of Annex VI to Regulation N o 1408/71 provides as follows:

T o r the purpose of applying Article 46(2) of the Regulation, Netherlands institu­ tions will respect the following provisions:

(a) if, when incapacity for work or the resultant invalidity occurred, the person concerned was an employed person within the meaning of Article 1(a) of the Regulation, the competent institution shall fix the amount of cash benefits in accordance with the provisions of the law of 18 February 1966 on insurance against incapacity for work (WAO), taking account of:

— insurance periods completed under the abovementioned law of 18 February 1966 (WAO),

I-1951

JUDGMENT OF 20. 4. 1999 — CASE C-360/97

I -1952

NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN

O l d age and death (pensions)' in Title III of Regulation N o 1408/71, as amended by Regulation N o 1606/98, provide in identical terms as follows:

'However, if the legislation of a Member State makes the acquisition, liquidation, retention or recovery of the rights to benefits under a special scheme for civil ser­ vants subject to the condition that all periods of insurance have been completed under one or more special schemes for civil servants in that Member State, or are regarded by the legislation of that Member State as equivalent to such periods, account shall be taken only of the periods which can be recognised under the leg­ islation in that Member State.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for the receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, the scheme applicable to manual or clerical workers, as the case may be.'

1 4 With regard to the award of pension rights under a special scheme for civil servants, Article 51a also refers to, inter alia, the provisions of Article 45(5) of Regulation N o 1408/71, as amended by Regulation N o 1606/98 (which corresponds, in substance, to the version of Article 45(4) of Regulation N o 1408/71 in force at the material time in the case in the main proceedings), and to the provisions of Article 46 of Regulation N o 1408/71.

17 Following an incapacity for work which arose on 29 March 1988, the Bundesver- sicherungsanstalt für Angestellte (Federal Insurance Office for Clerical Staff), by decision of 4 September 1989, awarded the plaintiff in the main proceedings an invalidity pension as from 9 November 1988. That benefit was awarded without taking into account the periods of insurance completed in the Netherlands.

18 Mr Nijhuis applied for an invalidity benefit to the Algemeen Burgerlijk Pensioen- fonds (General Civil Service Pension Fund, hereinafter 'the ABPF'), which, by a decision of 22 May 1990, rejected his application on the ground that he had not been insured under Netherlands legislation when his incapacity for work arose and that Regulation N o 1408/71 did not apply in respect of special schemes for civil servants, who were excluded from its material scope by virtue of Article 4(4) thereof.

19 Mr Nijhuis thereupon made the same application to the N A B , which was respon- sible for granting invalidity benefits under the WAO and the AAW and to the rights and obligations of which the LISV succeeded in 1997.

I -1954

NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN

20 By decision of 31 January 1990, the N A B rejected the application for benefit on the ground that, at the time when his incapacity for work arose, Mr Nijhuis was not insured under the WAO or under the AAW and could not rely on Article 45 of Regulation N o 1408/71 as a basis for claiming the Netherlands benefits, on the ground that he had not been subject to the Netherlands schemes as an employed or self-employed person.

Point 4(a) of Section J of Annex VI to Regulation N o 1408/71 (in the version in force at the material time) to be interpreted as meaning that, in the case of a person who has worked exclusively in the Netherlands in the period from 15 October 1968 to 1 April 1974 and who was insured throughout that period against invalidity under a special scheme for civil servants, that period should also be taken into account in accordance with that section of the annex when determining invalidity benefits?

2. If so, is the competent institution for the determination of benefits on the basis of those periods the institution referred to 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?'

24 It should be noted at the outset that, as the parties to the main proceedings and the Commission pointed out at the hearing, Mr Nijhuis has, since 25 October 1998, the date on which Regulation N o 1606/98 entered into force, and thus after the refer- ence to the Court in the present case was made, been in receipt of a pro rata benefit under the WAO, with the result that the scope of the questions referred by the national court should be limited to the period before that regulation entered into force.

The first question

25 By its first question, the Centrale Raad van Beroep is in substance asking whether Point 4(a) of Section J of Annex VI to Regulation N o 1408/71 must be construed as requiring the competent Netherlands institution, to which an application for a pro rata invalidity benefit has been made by a worker who has suffered an incapacity for work which arose in another Member State, to treat the periods of insurance completed by that worker in the Netherlands after 1 July 1967 under a special scheme for civil servants as if they were periods of insurance completed under the WAO.

29 With specific regard to the special schemes for civil servants or persons treated as such, the Community legislature discharged that obligation only when it adopted Regulation N o 1606/98, which entered into force on 25 October 1998, thereby leaving, for the preceding period, a substantial void in the Community coordina­ tion of social security schemes.

I-1957

JUDGMENT OF 20. 4. 1999 — CASE C-360/97

30 It is important, however, to bear in mind that the Council enjoys a wide discretion in regard to the choice of the most appropriate measures for achieving the result envisaged in Article 51 of the Treaty. Consequently, national bodies to which appli­ cations for social security benefits under a special scheme for civil servants or per­ sons treated as such have been made directly under Articles 48 and 51 of the Treaty, before measures to coordinate such schemes have been adopted at Community level cannot be required to apply by analogy the provisions of Regulation N o 1408/71 laid down for the social security schemes coming within its material scope. The position could be different only if it were possible to overcome the negative con­ sequences which national legislation has for workers who have exercised their right of free movement without having recourse to Community coordination measures.

31 Such was the position in the Vougioukas case, cited above, which was concerned with certain national rules which were discriminatory in so far as they had the effect of setting aside recognition of periods of insurance solely on the ground that those periods had been completed in a Member State other than that in question. Those rules, which established a difference in treatment as between workers who had not exercised their right of free movement and migrant workers, to the detriment of the latter, could be disapplied without there being any need to have recourse, for the purpose of resolving the dispute pending before the national court, to coordina­ tion rules which the Council alone is empowered to adopt.

33 As regards the judgments in Olivieri-Coenen and Grahame and Hollanders, cited above, although these were also concerned with the award of invalidity benefits under Netherlands legislation, the reference made to them has no relevance in the present case. Those judgments deal with the taking into account of periods of employment and periods treated as such completed in the Netherlands prior to 1 January 1967, the date on which the WAO entered into force, whereas the taking of such factors into account was expressly provided for in Point 4(a) of Section I of Annex V to Regulation N o 1408/71, as it applied on 1 February 1982, in Olivieri-Coenen, and in Point 4(a), third indent, of Section J of Annex VI to Regu­ lation N o 1408/71 in Grahame and Hollanders. As the LISV and the Netherlands Government have pointed out, in the main proceedings the periods of employment completed by Mr Nijhuis in the Netherlands were between 15 October 1968 and 1 April 1974.

34 The answer to the first question must therefore be that Point 4(a) of Section J of Annex VI to Regulation N o 1408/71 must be interpreted as not requiring the com­ petent Netherlands institution, to which an application for a pro rata invalidity benefit has been made by a worker who has suffered an incapacity for work which arose in another Member State, to treat the periods of insurance completed by that worker in the Netherlands after 1 July 1967 under a special scheme for civil servants as if they were periods of insurance completed under the WAO.

The second question

35 In view of the answer to the first question, it is unnecessary to reply to the second question.

in answer to the questions referred to it by the Centrale Raad van Beroep by order of 24 September 1997, hereby rules:

Point 4(a) of Section J of Annex VI to Council Regulation (EEC) N o 1408/71 of 14 June 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 Regulation (EEC) N o 2001/83 of 2 June 1983, as adapted by Annex I, Part VIII, to the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties, must be interpreted as not requiring the

I - 1960

NIJHUIS ν BESTUUR VAN HET LANDELIJK INSTITUUT SOCIALE VERZEKERINGEN

competent Netherlands institution, to which an application for a pro rata inval­ idity benefit has been made by a worker who has suffered an incapacity for work which arose in another Member State, to treat the periods of insurance completed by that worker in the Netherlands after 1 July 1967 under a special scheme for civil servants as if they were periods of insurance completed under the Wet op de Arbeidsongeschiktheidsverzekering of 18 February 1966.

Rodriguez Iglesias Kapteyn Puissochet