C.E. Franzen and Others v Raad van bestuur van de Sociale verzekeringsbank.

• Jurisdiction: European Union
• Celex Number: 62013CJ0382
• ECLI: ECLI:EU:C:2015:261
• Date: 23 April 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-382/13

JUDGMENT OF THE COURT (Fourth Chamber)

23 April 2015 ( *1 )

‛Reference for a preliminary ruling — Social security for migrant workers — Regulation (EEC) No 1408/71 — Articles 13(2) and 17 — Casual work in a Member State other than the State of residence — Legislation applicable — Refusal to grant family benefits and reduction of the old-age pension by the State of residence’

In Case C‑382/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Netherlands), made by decision of 1 July 2013, received at the Court on 4 July 2013, in the proceedings

C.E. Franzen,

H.D. Giesen,

F. van den Berg

v

Raad van bestuur van de Sociale verzekeringsbank,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Jürimäe (Rapporteur), J. Malenovský, M. Safjan and A. Prechal, Judges,

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 June 2014,

after considering the observations submitted on behalf of:

— C.E. Franzen, by S. Ikiz, advocaat,

— the Raad van bestuur van de Sociale verzekeringsbank, by H. van der Most and T. Theele, acting as Agents,

— the Netherlands Government, by M. Noort, acting as Agent,

— the United Kingdom Government, S. Brighouse, acting as Agent, and B. Kennely and J. Holmes, Barristers,

— the European Commission, by M. van Beek and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 September 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 13(2) and 17 of Regulation (EEC) No 1408/71 of the Council 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 (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) (‘Regulation No 1408/71’), and of Articles 20 TFEU, 21 TFEU and 45 TFEU.

2 The request has been made in the course of three sets of proceedings between Ms Franzen, Mr Giesen and Mr van den Berg and the Raad van bestuur van de Sociale verzekeringsbank (Management Board of the Social Insurance Bank) (‘the SVB’) respectively, regarding decisions by which the SVB refused to grant Ms Franzen child benefits and reduced the partner’s allowance and old-age pension, respectively, of Mr Giesen and Mr van den Berg.

Legal context

EU law

3 Article 1 of Regulation No 1408/71 states: ‘For the purpose of this Regulation: (a) employed person and self-employed person mean respectively: (i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants; (ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person: — can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or, — failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in Annex I; ...’

4 Article 2(1) of Regulation No 1408/71, entitled ‘Persons covered’, states: ‘This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.’

5 Article 13 of Regulation No 1408/71, which forms part of Title II thereof, entitled ‘Determination of the legislation applicable’, states: ‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title. 2. Subject to Articles 14 to 17: (a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State; ... (f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’

6 Under Article 17 of that regulation, entitled ‘Exceptions to Articles 13 to 16’: ‘Two or more Member States, the competent authorities of these States or the bodies 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.’

Netherlands law

The General Law on Old-Age Pensions

7 Under Article 2 of the General Law on Old-Age Pensions (Algemene Ouderdomswet) (‘the AOW’), residents within the meaning of that law are persons who live in the Netherlands.

8 According to Article 3(1) of the AOW, the place where a person lives is to be determined according to the circumstances.

9 Under Article 6(1)(a) of the AOW, insured persons, pursuant to the provisions of that law, are persons who have not yet reached retirement age and who are residents. Paragraph 3 of that article provides that, by derogation from paragraphs 1 and 2, the categories of persons insured may be extended or restricted by or by virtue of a general administrative regulation.

10 The Law of 29 April 1998 (Stb. 1998, No 267) added an Article 6a to the AOW, applicable retroactively from 1 January 1989, according to which: ‘If necessary, notwithstanding Article 6 of the AOW and the provisions based thereon, (a) persons shall be considered to be insured persons if their insurance, on the basis of this law, results from the application of the provisions of a treaty or convention or a decision of an organisation of public international law; (b) persons shall not be considered to be insured persons if, by virtue of a treaty or convention or a decision of an organisation of public international law, the legislation of another State applies to them.’

11 Article 13(1)(a) of the AOW provides that a reduction of 2% is to be applied to the pension amounts for every calendar year during which the person entitled to the pension was not insured after the age of 15 years but before the age of 65 years.

12 Article 13(2)(a) provides that a reduction of 2% is to be applied to the gross benefit payable for every calendar year during which the spouse of the person entitled to the pension was not insured after the person entitled to the pension had reached the age of 15 years but before that person had reached the age of 65 years.

13 Under the first sentence of Article 45(1) of the AOW, as it was worded at 1 April 1985, insured persons or previously insured persons are entitled, as appropriate, subject to the conditions and in accordance with the rate to be determined by general administrative regulation, to make contributions during periods after their 15th birthday but prior to their 65th birthday in respect of which they are or were not insured.

14 Under that same provision, as it was worded at 1 January 1990, insured persons or previously insured persons may be insured voluntarily, as appropriate, subject to the conditions and in accordance with the rate to be determined by general administrative regulation or by the provisions implementing that regulation, during periods after their 15th birthday but prior to their 65th birthday in respect of which they are not or were not insured.

The General Law on Child Benefits

15 Article 2 and Article 3(1) of the General Law on Child Benefits (Algemene Kinderbijslagwet) (‘the AKW’) are identical in content to Article 2 and Article 3(1) of the AOW.

16 Under Article 6(1)(a) of the AKW, insured persons, pursuant to the provisions of that law, are persons who are residents.

17 Article 6a(b) of the AKW provides that, if necessary, notwithstanding Article 6 of the AKW and the provisions based thereon, persons will not be considered to be insured persons if, by virtue of a treaty or convention or a...