C-347/98

1 — Original language: German. 2 — Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to 5. As may be seen from the letter of formal employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), notice initiating the procedure for failure to as amended by Council Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 (OJ 1991 L 206, p. 2), consolidated version of the Regula- tion published in OJ 1992 C 325, p. 1. 3 — Moniteur belge, 27 August 1970.

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OPINION OF MR ALBER — CASE C-347/98

fulfil an obligation, the Commission is not pational disease pensions payable to objecting to the obligation to pay contribu- persons who do not reside in Belgium tions as thus formulated, but only to the and who are no longer subject to the levying of social security contributions on Belgian social security system, the certain pensions payable to persons who Kingdom of Belgium has failed to fulfil are residing in another Member State and its obligations under Article 13(2)(f) of are in receipt of a pension provided by that Regulation No 1408/71 of the Council; State.

I I — Procedure 2. order the Kingdom of Belgium to pay the costs.

11. Article 17 reads as follows:

'1. Subject to Article 14c, persons to whom this Regulation applies shall be subject to the legislation of a single Member State 'Two or more Member States, the compet- only. That legislation shall be determined in ent authorities of these States or the bodies accordance with the provisions of this Title. designated by these authorities may by common agreement provide for exceptions to the provisions of Articles 13 to 16 in the interest of certain categories of persons or of certain persons.'

2. Subject to Articles 14 to 17:

12. Article 27 provides:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he 'A pensioner who is entitled to draw resides in the territory of another pensions under the legislation of two or Member State ... more Member States, of which one is that

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13. Article 33 reads as follows: (a) benefits in kind, provided on behalf of the competent institution by the insti- tutions of his place of residence in accordance with the provisions of the legislation which it administers as if he were insured with it; ' 1 . The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and (b) cash benefits provided by the compet- maternity shall be authorised to make such ent institution in accordance with the deductions, calculated in accordance with provisions of the legislation which it the legislation concerned, from the pension administers. However, by agreement payable by such institution, to the extent between the competent institution and that the cost of the benefits under Art- the institution of the place of residence, icle 27, 28, 28a, 29, 31 and 32 is to be these benefits may be provided by the borne by an institution of the said Member latter institution on behalf of the for- State. mer in accordance with the legislation of the competent State.'

2. Where, in the cases referred to in Art- icle 28a, the acquisition of benefits in 15. Article 77 reads as follows: respect of sickness and maternity is subject to the payment of contributions or similar payments under the legislation of a Mem- ber State in whose territory the pensioner in question resides, by virtue of such resi- '1. The term "benefits", for the purposes of dence, these contributions shall not be this Article, shall mean family allowances payable.' for persons receiving pensions for old age,

(i) in accordance with the legislation 4 — Regulation (EEC) No 574/72 of the Council of 21 March of whichever of these States he 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security resides in provided that a right to schemes to employed persons and their families moving one of the benefits referred to in within the Community (OJ, English Special Edition 1972 (I), p. 159), as amended by Council Regulation (EEC) paragraph 1 is acquired under the No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 (OJ 1991 L 206, p. 2), consolidated version of legislation of that State, ... or the Regulation published in OJ 1992 C 325, p. 96.

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B —• National law of the regulation the legislation of the State of residence is to apply.

17. The contested Article 46 of the Con- solidated Laws on compensation for damage resulting from occupational dis- 19. The Commission cites the judgments in eases has already been set out in para- Perenboom v Inspecteur der directe belas- graph 4 above. tingen of Nijmegen, 6Commission v Bel- gium 7and Kuusijärvi v Riksförsäkrings- verket, 8concluding from them that per- sons who no longer work in Belgium and who have transferred their residence to another Member State are subject solely to IV — The arguments of the parties the legislation of that Member State. The Belgian authorities are therefore no longer empowered to levy social security contri- butions on pensions paid in respect of occupational disease to persons in such a (1) The Commission situation.

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COMMISSION V BELGIUM

21. In response to the Belgian Govern- of the regulation, which means that in ment's reference to Article 52 of the regu- principle it is the legal system of the State of lation, according to which a person who employment which is applicable, even sustains an accident at work or contracts an when the worker resides in another Mem- occupational disease is to receive benefits in ber State. Article 13(2)(f) provides for an kind provided on behalf of the competent exception, of a subsidiary nature, to that institution by the institutions of his place of rule. It must therefore be interpreted residence and cash benefits provided by the restrictively, and only when the conditions competent institution, the Commission laid down in that provision are satisfied is objects that that rule does not concern it possible for competence to be transferred standard sickness-related costs, as referred from the State of employment to the State to in Chapter 1 of the regulation, but of residence. One of those conditions is that specific benefits provided in respect of a person does not cease to be subject to the accidents at work or occupational diseases. legislation of one Member State without Finally, the Commission rejects the Belgian the legislation of another Member State Government's objection that the contribu- becoming applicable to him. It must there- tions are the consideration for membership fore be ascertained in what circumstances of the Belgian social security scheme, legislation — in this case, the Belgian stating that, under Article 13(2)(f) of the social insurance provisions — ceases to regulation, the Belgian State is no longer be applicable to persons in receipt of competent, and only the State of residence pensions in respect of occupational disease remains so. who reside in another Member State where, moreover, they are in receipt of another pension.

25. In the present case, Belgian social the social insurance scheme of the State of security legislation remains applicable. This residence. is evident, first, from the granting of benefits under the Belgian occupational diseases scheme and, second, from benefits available from other branches of social security, for example family benefits, pay- ment of costs associated with sickness and, 28. The compatibility with Community in calculating retirement pensions, the fact law of the continuing applicability of the that periods involving more than 66% Belgian provisions is also confirmed by incapacity for work are taken into account. Article 52 of the regulation, which men- Those persons retain the status of insured tions the 'competent institution' as provid- persons under the social insurance scheme. ing both benefits in kind and cash benefits for persons residing in another Member State. In practice, a person receiving a pension in respect of occupational disease who resides in another Member State receives Form E 123 from the Fonds des Maladies professionnelles (Occupational 26. Furthermore, according to the Belgian Diseases Fund, 'FMP'). On that basis, the Government, the question whether the State of residence grants him sickness legal system of a Member State ceases to benefits, which are refunded by the FMP. be applicable depends, according to Art- icle 10b of Regulation No 574/72, on the national provisions. Thus, Community law explicitly refers to national law. In regard to the competence of a Member State to establish the limits of applicability of its legal system, the Belgian Government refers 29. In the result, it must be assumed that to the judgments in Coppola v Insurance Article 13(2)(f) of the regulation is not Officer 12 and Ten Holder v Nieuwe Alge- applicable and that Belgian law therefore mene Bedrijfsvereniging. 13 remains applicable on the basis both of the competence transferred to Member States and of the fact that persons who contract occupational diseases remain subject to the Belgian social insurance scheme even when they are resident in another Member State and that, finally, there is consequently no 27. Furthermore, according to the Belgian conflict with Community law. Government, ceasing to apply the Belgian legislation and consequently no longer granting the benefits in question would be incompatible with the principle of acquired rights. Change of residence alone cannot have the effect of bringing a person under 30. The Belgian Government then con- tends, but only in the alternative, that 12 — Case 150/82 Coppola v Insurance Officer [1983] ECR 43. levying contributions is in any event in 13 — Cited in footnote 5. accordance with Community law. They are

33. The Netherlands Government gives as 31. Only in the event of the Court's never- its reason for intervening the attitude of the theless holding the application to be well Commission towards the Netherlands com- founded, does the Belgian Government pulsory insurance scheme. Under Nether- claim that any repayments of contributions lands law there is compulsory insurance for should not be required for the period before persons in receipt of long-term benefits as a Regulation No 2195/91 14 entered into result of incapacity for work, old age or force, that is to say, before 29 July 1991. death, even when they reside outside the Netherlands. As a consequence of that insurance coverage, old-age, death and family benefits and certain sickness-related costs are paid to insured persons. Such insured persons must, like those who reside in the Netherlands, pay contributions. The Commission requested information on the (3) The Netherlands Government termination of compulsory insurance for persons receiving pensions who reside in another Member State. From this the Netherlands Government concluded that 32. The Netherlands Government, which the Netherlands have competence to retain has intervened in the proceedings in sup- the compulsory insurance scheme for per- port of the Belgian Government, takes the sons receiving long-term benefits who view that the conflict rules contained in reside in another Member State. It thinks Regulation No 1408/71, and in Art- that, by bringing its action in this case, the icle 13(2)(f) thereof in particular, do not Commission may have altered its position mean that a person who ceases to work in a also on the Netherlands provisions. Member State is no longer subject to that State's social insurance legislation if he lives in another Member State or has transferred

applicable within the meaning of Art- residence clauses are lawful in a second icle 13(2)(f) of the Regulation only where Member State; the national legal system provides for this, the Netherlands Government has analysed the Kuusijärvi case and the origin of Regulation No 2195/91. The possibility of a Member State maintaining the applic- ability of its legislation — a possibility envisaged by Article 10b of Regulation — If however, the first Member State does No 574/72 — could result in the persons not subject membership of its social concerned preserving their rights to benefits security scheme to a residence require- and the State of residence not being ment, that scheme remains applicable exposed to disproportionate costs. In that even if the former worker resides in regard, it makes little difference whether another Member State; the continuing applicability of national provisions relates to all branches of social security or only some of them. Finally, in the context of the adoption of Regulation No 2195/91, Article 17 of Regulation No 1408/71 has also been adapted to the — If at a later date the worker no longer effect that derogating provisions can now satisfies the conditions for membership be agreed for groups of persons who have of the first Member State's social not ceased work. The Netherlands Govern- security scheme, the legal system of ment considers that the conflict rules in the State of residence is then applicable Regulation No 1408/71 should be under- with effect from that date; stood as follows:

— In the interest of persons concerned, the Member State in which a person last worked and the State of residence — As long as a worker is working in the may agree exceptions. territory of a Member State, no resi- dence requirement may be raised against his joining that State's social security scheme;

36. The applicability of the legislation of the Member State in which a person last worked entails competence to levy social security contributions. In this context, the Netherlands Government refers to the V — Assessment judgment in Perenboom v Inspecteur der directe belastingen of Nijmegen, 15 De Jaeck v Staatssecretaris van Financiën 16 and Molenaar v Allgemeine Ortskranken- kasse Baden-Württemberg. 17 40. In its application, the Commission is obviously starting from the premiss that the Belgian legislation is no longer applicable to a person in receipt of a pension in respect 37. The Netherlands Government also of an occupational disease once he has expresses an opinion on a possible conflict transferred his residence to another Mem- between Articles 33 and 52 of Regulation ber State after ceasing work in Belgium, for No 1408/71. Following a detailed analysis whatever reason. In the event that he was of these provisions and of cases where they residing in another Member State during have been applied, it reaches the conclusion the period when he was working, as is the that Regulation No 1408/71 does not pro- case for frontier workers for example, even vide for one of those articles to take the mere ceasing of work would of itself precedence over the other. lead to the inapplicability of the Belgian legislation. Under Article 13(2)(f), the le- gislation of the State of residence would then be applicable. The inapplicability of 38. Finally, the Netherlands Government the Belgian legislation means that it is takes a position on the problem of the unlawful to levy social security contribu- temporal effects of a judgment finding that tions on pensions in respect of occupational Belgium has failed to fulfil its obligations. disease provided by Belgium. In that regard, it suggests limiting the judgment's possible effects to the period following its delivery.

The levying of social security contributions Regulation No 1408/71, is significant in is the corollary of retention of the status of this regard. Those two provisions were member of the social insurance scheme, later incorporated into Regulations which, for example, also involves contribu- No 1408/71 and No 574/72 by Regulation tion periods being taken into account for No 2195/91. Article 10b of Regulation the purposes of pensions insurance. No 574/72 refers expressly to the legisla- tion of the Member States determining 'the date and conditions on which the legisla- tion of a Member State ceases to be applicable to a person referred to in Article 13(2)(f) of the Regulation'. Under 42. The question, therefore, is whether that provision, therefore, the national le- transfer of residence in the circumstances gislation is conclusive in determining described results in the application of whether a person continues to be subject Article 13(2)(f) of Regulation No 1408/71 to it or not. On this point, the Belgian alone, which prescribes the legislation of Government's argument that persons in the State of residence as the applicable law, receipt of pensions in respect of occupa- or whether it is for the Member State in tional disease remain subject to the Belgian which the person last worked to determine social security scheme regardless of resi- whether, and if so on what conditions, its dence is entirely correct. legislation is to continue to apply.

49. In its application to the Court, the Commission based its case, at first by reference to the pre-litigation procedure, on persons in receipt of pensions in respect 47. In that regard, in its judgment in of occupational disease who 'wo longer Kuusijärvi, the Court held that: belong to the Belgian social security scheme'. In so doing, it circumvents, in the abstract, the preliminary issue, to be determined in accordance with national law, whether a legal system that has previously been applied should continue 'the provisions of Title II of Regulation to be applicable. In its reasoned opinion, it No 1408/71, of which Article 13 forms formulated the ground of complaint in such part, constitute a complete and uniform a way that it related to persons in receipt of system of conflict rules. Those provisions such pensions who do not receive any are intended not only to prevent the social security benefits other than the concurrent application of a number of pensions in question. national legislative systems and the com- plications which might ensue, but also to ensure that persons covered by Regulation No 1408/71 are not left without social security cover because there is no legisla- tion which is applicable to them'. 20 50. The wording of the application leaves in abeyance the question as to what are the criteria according to which the persons concerned no longer belong to the Belgian social security scheme. That circumstance having been assumed, the way is entirely open to the application of Article 13(2)(f) 48. One can therefore start from the pre- and hence to the applicability of the miss that, in determining whether Art- provisions of the State of residence. How- icle 13(2)(f) of Regulation No 1408/71 is ever, the Belgian Government has deprived applicable, a preliminary issue, to be deter- that line of argument of its foundation by stating that persons in receipt of pensions in respect of occupational disease still belong 20 — Kuusijärvi, paragraph 28. Emphasis added. to the Belgian social security scheme.

52. The Belgian Government's argument (b) payment of benefits to persons resident that membership of the social security in the territories of Member States.' 21 scheme depends solely on the granting of a pension in respect of occupational disease and that the Belgian legislation can be viewed as ceasing to be applicable only when pension payments have been suspen- ded, is highly dubious, since the pension 54. The Belgian Government's argument paid in respect of occupational disease is a that the contributions constitute the con- benefit acquired by the payment of pre- sideration for the pension paid seems vious contributions and the residence equally unconvincing as support for the clauses relating to it have been abolished continuing validity of the Belgian claim to in accordance with Article 10 of Regula- contributions. Contributions intended to tion No 1408/71. Where a person entitled provide insurance against accidents at work to a pension in respect of occupational and occupational diseases are as a rule paid disease transfers his residence to another during the period when the contributor is Member State, this alone does not justify working, either by the employer alone or the Member State which granted the pen- by the employer and the employee. In sion suspending the payment of it. contrast, when the event insured against materialises, it is the solidarity of all insured persons in common that comes into operation.

55. However, the Belgian Government has 53. As the Belgian Government itself main- referred to other social security benefits tains, this would be contrary to the princi- granted to persons entitled to a pension in ple of acquired rights. Such a practice would also conflict with the principles of the Community provisions for coordinating 21 — Emphasis added.

the event of occupational disease. In this longer subject to the legislation of a Mem- regard, it has explicitly mentioned sickness- ber State constitute a material condition for related costs and family benefits. It has also applying Article 13(2)(f) of Regulation referred to the fact that the status of No 1408/71, the Commission's arguments member of the social insurance scheme is, in support of its application are not con- as such, maintained, with the result that clusive or are rebutted by the arguments in periods during which pensions in respect of defence raised against them by the Belgian occupational disease were granted may be Government. counted for the purposes of the old-age pension scheme. It is above all this last aspect which is, like the right to sickness benefits, characteristic of membership of a social security scheme. The Belgian Gov- ernment has, it is true, mentioned a dis- tinction as to the level of social insurance 58. Furthermore, the Commission's protection according to whether the rate of assumption that, in the event of a person incapacity for work of a person in receipt covered by Regulation No 1408/71 trans- of a pension in respect of occupational ferring his residence to another Member disease is above or below 66%. However, it State, the legislation of the State of resi- cannot be inferred with certainty from the dence becomes applicable by virtue of information provided by the Belgian Gov- Community law in the form of Art- ernment whether, and in what way, persons icle 13(2)(f) of that regulation does not in receipt of pensions in respect of occupa- seem to follow necessarily either from tional disease whose rate of incapacity for Article 13(2)(f) or from the case-law of work is below 66% are members of the the Court of Justice. It is notable that the Belgian social security scheme. parties to the proceedings cite the same judgments in support of different argu- ments. However, Article 13(2)(f) expressly states that 'a person... shall be subject to the legislation of the Member State in whose territory he resides in accordance 56. For its part, the Commission has failed with the provisions of that legislation to establish the circumstances in which the alone', 22 that is to say, in accordance with Belgian legislation ceases to apply to a the provisions of the State of residence. person who is in receipt of a pension in respect of an occupational disease and who resides in another Member State. In parti- cular, it has not attempted to refute the Belgian Government's assertion that the whole body of legislation on social security 59. That wording therefore refers to the continues to apply to those persons. provisions of the State of residence which is competent by virtue of Article 13(2)(f), when the conditions of that provision have also been satisfied. However, that reference still does not serve to determine for which

60. It now remains to examine the extent to which the relevant provisions of Title III of Regulation No 1408/71 — which sets out the 'special provisions relating to the 62. Those provisions in no way preclude various categories of benefits' — are con- the theoretical possibility of the social sistent with the interpretation of Art- security provisions of a Member State icle 13(2)(f) of that regulation outlined which grants a pension continuing to be above or whether it can be inferred from applicable. On the contrary, the institution them that the Belgian legislation ceases to of the State providing the pension is and apply. remains potentially required to pay bene- fits. This is why Article 28 mentions in several places 'the competent institution' and in Article 28a mention is made of 'the institution of one of the Member States competent in respect of pensions'. 61. Article 27 of Regulation No 1408/71, in Section 5 'Pensioners and members of their families' of Chapter 1 'Sickness and maternity', governs competence in matters of 'sickness and maternity benefits' for pensioners who are entitled to draw pen- 63. Article 33 of Regulation No 1408/71 is sions under the legislation of two or more no more than a consequence of the preced- Member States. When a person is entitled ing apportionment of burdens. It governs to a pension under the provisions of the the right to levy or deduct contributions in Member State in whose territory he resides, order to finance sickness benefits. Under and at the same time is entitled under the this provision, the 'competent institution' is

empowered — as it were in consideration sons receiving benefits in respect of acci- of its obligation to pay benefits, which goes dents at work or occupational disease. In beyond granting a pension in respect of accordance with Article 52(a), that cate- occupational disease — to deduct contri- gory of persons is to receive benefits in kind butions in so far as it is allowed to do so by in the State of residence but 'on behalf of the legislation applicable to it. Thus, it is the competent institution'. The institution not by chance that the Belgian Government of the State of residence may even under cites Article 33 in order to justify levying certain circumstances grant pecuniary social security contributions on pensions in benefits pursuant to Article 52(b) of the respect of occupational disease paid to regulation, but again on behalf of the pensioners who reside in another Member competent institution. It is true that Chap- State. In that connection, it has not failed to ter 4 'Accidents at work and occupational point out that in these cases the cost of diseases' contains no autonomous rules on providing sickness benefits is as a rule the obligation to pay contributions, but borne by the Belgian institution. Levying that is in conformity with the general contributions is in any event in accordance principle that the obligation to contribute with Article 33(1). Nor does Article 33(2) for insurance against accidents at work and of Regulation No 1408/71 preclude it. occupational diseases generally exists That provision concerns special cases, before the event insured against arises. regulated in Article 28a of that regulation, where a right to receive benefits in kind exists in that State of residence without that State having any responsibility to pay a pension. It is only where the pensioner is subject, in the circumstances described, to contributions or to deductions of the same value that under Article 33(2) those con- 65. In any event, the assumption that the tributions are not payable to the State Belgian institution, as the entity responsible granting the pension. In the result, although for paying a pension, is also in principle the it has not intervened in the way in which 'competent institution' which is ultimately the actual obligation to pay contributions required to grant the benefits is not pre- arises, the Community legislature has cluded by Article 52(b) of Regulation decreed that the right to levy contributions No 1408/71. No conflict between the pro- is ultimately to be correlative to the obliga- visions of Chapter 1 'Sickness and mater- tion to pay benefits. That reading of the nity' and the provisions of Chapter 4 is situation has, moreover, been confirmed by therefore discernible. the Court in its judgment in Noij v Staatssecretaris van Financiën. 23

pensions in respect of occupational disease. benefit of persons engaged in an occupa- In so far as the Belgian State is the only tional activity. 24 This possibility was exten- Member State granting a pension, that ded by the amending regulation to 'certain competence follows from Article 77(2)(a) categories of persons or ... certain persons'. of Regulation No 1408/71. By contrast, the Article 17 is thus the expression of a Commission bases its contention also on relative flexibility, for the purpose of react- cases where the State of residence is also ing in an appropriate manner, in the event responsible for paying a pension, and of need, to certain situations. Thus, the therefore on circumstances in which Art- derogating rule also relates to Art- icle 77(2)(b) of Regulation No 1408/71 icle 13(2)(f) of Regulation No 1408/71, applies. Under that provision, by virtue of but does not thereby call it into question. point (i) thereof, a right exists to family The provision is therefore quite immaterial benefits in the State of residence where with regard to determining the scope of there is entitlement to a benefit under the Article 13(2)(f). legislation of that State. Here, too, national law is conclusive. If the law of the State of residence does not provide for such an entitlement, then Article 77(2)(b)(ii) applies, which provides for an alternative competence vested in the Member States which grant a pension, dependent on the length of time for which the legal systems were applicable to the pensioner or on the requirements of the rules establishing enti- tlement in the particular Member State. 69. In the result, it must be found that the Commission has failed to explain when and in what circumstances Belgian legislation ceases to be applicable to persons who are in receipt of pensions in respect of occupa- tional disease under Belgian law. That situation is an indispensable prerequisite 67. Therefore, even when that provision is for the application of Article 13(2)(f) of applied, the Belgian State in any event Regulation No 1408/71, which the Com- remains in principle competent in the mission claims to have been infringed. The alternative for granting family benefits. application would be well founded only if That provision, too, is therefore such as persons entitled to an occupational inval- to support the Belgian Government's con- idity pension under Belgian law had no tention. right to another benefit under Belgian social security and moreover no longer had the status of an insured person for social security purposes under Belgian law, with the result that periods during which pensions in respect of occupational disease 68. Lastly, Article 17 of Regulation were granted would not be taken into No 1408/71, which was amended when account under the Belgian social security Regulation No 2195/91 amending that regulation was adopted, should be men- tioned. The provision continued to author- 24 — Certain categories of persons or certain persons who are ise exceptions to Articles 13 to 16 for the employed or self-employed.

(2) The Commission shall bear its own costs and pay those of the Kingdom of Belgium;

(3) The Kingdom of the Netherlands shall bear its own costs.

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