Raad van bestuur van de Sociale verzekeringsbank v L. F. Evans.

• Jurisdiction: European Union
• Celex Number: 62013CJ0179
• ECLI: ECLI:EU:C:2015:12
• Date: 15 January 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-179/13

JUDGMENT OF THE COURT (Fifth Chamber)

15 January 2015 (*1 )

‛Reference for a preliminary ruling — Determination of the social security legislation applicable to a worker — Regulation (EEC) No 1408/71 — Applicability — Employment of a national of a Member State at the consulate of a third State in the territory of another Member State in whose territory he resides — Vienna Convention on consular relations — Article 71(2) — National legislation according facilities, privileges and immunities to permanent residents’

In Case C‑179/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Netherlands), made by decision of 9 April 2013, received at the Court on 12 April 2013, in the proceedings

Raad van bestuur van de Sociale verzekeringsbank

v

L.F. Evans,

THE COURT (Fifth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda, A. Rosas, E. Juhász and D. Šváby (Rapporteur), Judges,

Advocate General: N. Wahl,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 9 April 2014,

after considering the observations submitted on behalf of:

— the Raad van bestuur van de Sociale verzekeringsbank, by H. van der Most,

— Ms Evans, by N. Matt, advocaat,

— the Netherlands Government, by J. Langer, M. Bulterman and M. Gijzen, acting as Agents,

— the Portuguese Government, by L. Inez Fernandes, acting as Agent, assisted by A. Silva Rocha, Professor,

— the European Commission, by M. van Beek, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 19 June 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 2, 3 and/or 16 of Council Regulation (EEC) No 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, in the version 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, in the alternative, Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).

2 The request has been submitted in proceedings between the Raad van bestuur van de Sociale verzekeringsbank (‘the Svb’) and Ms Evans, a British national, concerning the calculation of pension entitlements pertaining to the period during which she was employed by the Consulate General of the United States of America in Amsterdam (Netherlands) and enjoyed privileged status by virtue of which she was exempted, in particular, from all social security contributions and was therefore not affiliated to the Dutch social security scheme.

The legal context

International law

3 Article 1(1) and (3) of the Vienna Convention on Consular Relations (United Nations Treaty Series, vol. 596, p. 261, ‘Vienna Convention of 1963’) provides: ‘1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them: a. “consular post” means any consulate-general, consulate, vice-consulate or consular agency; … c. “head of consular post” means the person charged with the duty of acting in that capacity; d. “consular officer” means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; e. “consular employee” means any person employed in the administrative or technical service of a consular post; f. “member of the service staff” means any person employed in the domestic service of a consular post; g. “members of the consular post” means consular officers, consular employees and members of the service staff; h. “members of the consular staff” means consular officers, other than the head of a consular post, consular employees and members of the service staff; i. “member of the private staff” means a person who is employed exclusively in the private service of a member of the consular post; … 3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by article 71 of the present Convention.’

4 Article 48 of the Convention, headed ‘Social security exemption’, provides: ‘1. Subject to the provisions of paragraph 3 of this article, members of the consular post with respect to services rendered by them for the sending State, and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State. 2. The exemption provided for in paragraph 1 of this article shall apply also to members of the private staff who are in the sole employ of members of the consular post, on condition: (a) that they are not nationals of or permanently resident in the receiving State; and (b) that they are covered by the social security provisions which are in force in the sending State or a third State. 3. Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers. 4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State, provided that such participation is permitted by that State.’

5 Article 71 of the Convention, headed ‘Nationals or permanent residents of the receiving State’, provides: ‘1. Except insofar as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privileges provided in paragraph 3 of article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible. 2. Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families … shall enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. …’

6 The Kingdom of the Netherlands deposited its instrument of ratification of the Vienna Convention of 1963 with the Secretary General of the United Nations on 17 December 1985, so that the Convention entered into force for it on 16 January 1986.

European Union legislation

Regulation No 1612/68

7 Article 7(2) of Regulation No 1612/68 provides that a worker who is a national of a Member State is to enjoy, in the territory of other Member States, the same social and tax advantages as national workers.

Regulation No 1408/71

8 The fifth and eighth recitals in the preamble to Regulation No 1408/71 provide as follows: ‘Whereas it is necessary, within the framework of that coordination, to guarantee within the Community equality of treatment under the various national legislations to workers living in the Member States and their dependants and their survivors; … Whereas employed persons and self-employed persons moving within the Community should be subject to the social security scheme of only one single Member State in order to avoid overlapping of national legislations applicable and the complications which could result therefrom.’

9 Article 1(a) of Regulation No 1408/71 provides that, for the purposes of the regulation, the term ‘employed person’ means, inter alia, 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 persons.

10 Article 2(1) of that regulation provides: ‘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.’

11 Article 3(1) of that regulation provides: ‘Subject to the special provisions of this Regulation, persons to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’

12 In Title II of Regulation No 1408/71 (‘Determination of the legislation applicable’), Article 13 (‘General rules’), provides: ‘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...