Opinion of Advocate General Collins delivered on 12 October 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:769
• Date: 12 October 2023
• Celex Number: 62022CC0549
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 12 October 2023(1)

Case C‑549/22

X

v

Raad van bestuur van de Sociale verzekeringsbank

(Request for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands))

(Reference for a preliminary ruling – External relations – Euro-Mediterranean Association Agreement EU‑Algeria – Article 68(4) – Direct effect – Personal scope – Surviving spouse of a worker of Algerian nationality employed in a Member State – Export of a survivors’ benefit to Algeria – Reduction of benefit – Discrimination on grounds of nationality – Objective justification for reduction that reflects differences in living costs)

I. Introduction

1. The appellant, X, resides in Algeria. Since her deceased spouse worked in the Netherlands, she receives a survivors’ benefit from the Sociale verzekeringsbank (Social Insurance Bank, Netherlands) (‘the SVB’). The Netherlands adopted legislation that reduced the amount of survivors’ benefit paid to X on the basis that the cost of living in Algeria was lower than in that Member State. X challenged that reduction in proceedings before the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands). That Court wishes to know whether Article 68(4) of the Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part (‘the Association Agreement’) (2) precludes such a reduction.

II. Legal framework

A. European Union law

2. Article 68 of the Association Agreement provides:

‘1. Subject to the provisions of the following paragraphs, workers of Algerian nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination on grounds of nationality relative to nationals of the Member States in which they are employed.

The term “social security” shall cover the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits.

These provisions shall not, however, cause the other coordination rules provided for in Community legislation based on Article 42 of the Treaty establishing the European Community to apply, except under the conditions set out in Article 70 of this Agreement.

2. All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and survivors’ benefits, family, sickness and maternity benefits, and medical care for the workers and for members of their families resident in the Community.

3. The workers in question shall receive family allowances for members of their families who are resident in the Community.

4. The workers in question shall be able to transfer freely to Algeria, at the rates applied by virtue of the legislation of the debtor Member State or States, any pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-contributory benefits.

…’

3. Under Article 70 of the Association Agreement:

‘1. Before the end of the first year following the entry into force of this Agreement, the Association Council shall adopt provisions to implement the principles set out in Article 68.

2. The Association Council shall adopt detailed rules for administrative cooperation providing the necessary management and monitoring guarantees for the application of the provisions referred to in paragraph 1.’

B. Netherlands law

4. The order for reference identifies the following provisions of national law as relevant.

5. Article 13(1) of the Algemene Nabestaandenwet (General law on survivors) (‘the ANW’) states:

‘A person shall be deemed to be insured in accordance with the provisions of this Law if he or she:

(a) is resident;

(b) is not resident but is subject to wage tax in respect of work carried out in an employment relationship in the Netherlands or on the continental shelf.’

6. Article 14(1) of the ANW states, in so far as is relevant:

‘The surviving relative shall be entitled to survivors’ benefit if he or she:

(a) has an unmarried child who is under the age of 18 and is not a member of another person’s household; or

(b) is incapacitated for work.’

7. Article 17(1) of the ANW provides:

‘The gross survivors’ benefit shall be fixed at such an amount that, after deduction of the wage tax and national insurance contributions that are to be withheld on that amount for a person who has not yet reached retirement age, taking into account only the general tax credit referred to in Article 22 of the Wet op de loonbelasting 1964 (Law of 1964 on wage tax), the net survivors’ benefit is equal to 70% of the net minimum wage.’

8. Under Article 17(3) of the ANW:

‘For a surviving relative who is living outside the Netherlands, one of the other Member States of the European Union, another State party to the EEA Agreement or Switzerland, the gross survivors’ benefit shall be a percentage fixed by ministerial order of the amount determined pursuant to paragraphs 1, 2 or 5. The percentage shall be determined in such a way as to reflect the relationship between the level of costs of the country in which the survivor is resident and that of the Netherlands. The percentage shall not exceed 100.’

9. By Article 32(a)(1) and (2) of the ANW:

‘1. No entitlement to the survivors’ benefit shall arise for the surviving relative if he or she is not living in the Netherlands on the day of the insured person’s death. …

2. The first paragraph shall not apply if the surviving relative …, on the day of the insured person’s death, is living in a country in which there may exist, pursuant to a treaty or a decision of an international organisation, an entitlement to survivors’ benefit …’

III. The facts of the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

10. On 1 January 2000, the Wet beperking export uitkeringen (Law restricting the export of social security benefits) came into force. It introduced the territoriality principle into different areas of social security law. The principal rule is that there is no right to a benefit, or an existing right to a benefit terminates, when the beneficiary lives outside of the Netherlands or ceases to reside in that Member State. There is an exception where an international treaty with the beneficiary’s country of residence governs the export of the benefit, thereby allowing checks to be carried out in order to ensure that those benefits are paid lawfully. Such a treaty does not exist between the Netherlands and Algeria.

11. Under transitional arrangements, a survivors’ benefit that accrued to a beneficiary before 31 December 1999 could be exported, even to a country with which the Netherlands had not concluded such a treaty.

12. On 1 July 2012, the Wet woonlandbeginsel in de sociale zekerheid (Law on country-of-residence principle in social security) (‘the Wwsz’) entered into force. According to its explanatory memorandum, the Wwsz aims to restrict the export, or payment abroad, of social security benefits outside the European Union. To that end, it amended Article 17(3) of the ANW. (3) The Wwsz aims to ensure that benefits calculated by reference to the Netherlands minimum wage, or that cover certain costs, are in line with the cost of living in a country to which they are exported. Beneficiaries who do not reside in the Netherlands, another Member State, a State party to the European Economic Area Agreement, or Switzerland, are thus paid a benefit calculated as a percentage of the amount of survivors’ benefit that they would receive if they lived in the Netherlands.

13. For beneficiaries residing in the Netherlands, the maximum amount of survivors’ benefit is 70% of the Netherlands legal monthly minimum wage. For beneficiaries residing in Algeria, the level of benefit was 60% of the level applicable in the Netherlands from 2013 and 40% from 2016. (4) Those percentages seek to reflect the cost of living in Algeria relative to that in the Netherlands.

14. The appellant’s late husband was an employee in the Netherlands. Under the ANW the appellant was entitled to a survivors’ benefit from 1 January 1999. Pursuant to the transitional arrangements, (5) from 1 January 2000 that benefit was exported to Algeria, her country of residence. By decision of 19 September 2018, the SVB informed the appellant that, with effect from 1 January 2013, her survivors’ benefit would be reduced so as to reflect the cost of living in Algeria. In her appeal to the referring court, X maintains that she is unable to support herself as a result of that reduction.

15. According to the referring court’s settled case-law, the reduction of a benefit due to the application of the country-of-residence principle is a restriction on the export of that benefit. The SVB takes the position that Article 68(4) of the Association Agreement does not preclude such a restriction because it does not contain a clear and precisely defined obligation to permit the export of benefits. Article 68(4) of the Association Agreement therefore does not have direct effect. That position is consonant with Article 70 of the Association Agreement, which provides that Article 68 thereof merely sets out general principles for the Association Council to implement, which it has not done.

16. The referring court observes that the interpretation of Article 68(4) of the Association Agreement is relevant to the export of benefits to Algeria and to the export of benefits to other...