Case Notes and Commentaries
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| DOI | 10.1177/138826270500700204 |
| Subject Matter | Case Notes and Commentaries |
THE VAN POMMEREN-BOURGONDIE¨N JUDGMENT
The Van Pommeren-Bourgondie¨n judgment concerns the question of the extent to
which post-active persons who no longer live in the State of last employment are still
covered by the social security legislation of that State.
Judgment
COURT OF JUSTICE 7 July 2005
(A. Rosas, President, J.-P. Puissochet (Rapporteur), S. von Bahr, U. Lo˜hmus and
A. O
´ Caoimh, Judges)
(Social security – Regulation (EEC) No 1408/71 – Scope – Invalidity benefit –
Continued entitlement to benefits after transfer of residence to another Member State)
REFERENCE under Article 234 EC for a preliminary ruling from the Rechtbank te
Amsterdam (Netherlands), in the proceedings between
A.J. van Pommeren-Bourgondie¨n and Raad van bestuur van de Sociale
verzekeringsbank (Case C-227/03).
1.
The reference for a preliminary ruling concerns the interpretation of Article 39
EC and Article 13 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 by Council Regulation (EEC) No 2195/
91 of 25 June 1991 (OJ 1991 L 206, p. 2) (‘Regulation No 1408/71’).
2.
That reference was made in proceedings between Mrs van Pommeren-
Bourgondie¨n and the Raad van bestuur van de Sociale verzekeringsbank
(Board of Management of the Social Insurance Bank; ‘SVB’) regarding the
latter’s refusal to continue her compulsory insurance in respect of certain
branches of social security on the ground that she no longer resided in the
Netherlands.
European Journal of Social Security, Volume 7 (2005), No. 2
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Case Notes and Commentaries
Relevant provisions
Community law
3.
Under Article 4(1) of Regulation No 1408/71, that regulation ‘... shall apply to
all legislation concerning the following branches of social security:
a. sickness and maternity benefits;
b. invalidity benefits ...;
c. old-age benefits;
d. survivors’ benefits;
...
g. unemployment benefits;
h. family benefits.’
4.
Title II (Articles 13 to 17a) of that regulation, headed ‘Determination of the
legislation applicable’, governs conflicts.
5.
Under Article 13 of Regulation No 1408/71:
‘1. Subject to Article 14c, 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 the provisions of Articles 14 to 17:
a. a worker 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 ...
...
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 ..., shall be subject to the legislation of the Member
State in whose territory he resides.’
6.
Under Article 10b of Council Regulation (EEC) No 574/72 of 21 March 1972
laying down the procedure for implementing Regulation No 1408/71 (OJ 1972
L 74, p. 1), in the version amended and updated by Council Regulation (EC)
No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1):
‘The date and conditions on which the legislation of a Member State ceases to
be applicable to a person referred to in Article 13(2)(f) of Regulation [No
1408/71] shall be determined in accordance with that legislation. ...’
7.
Under Article 15 of Regulation No 1408/71:
‘1. The provisions of Articles 13 and 14d shall not apply to voluntary
insurance or optional continued insurance unless, in respect of one of the
branches referred to in Article 4, there exists in any Member State only a
voluntary scheme of insurance.
168
Intersentia
Case Notes and Commentaries
2. Where application of the legislations of two or more Member States entails
overlapping of insurance:
– under a compulsory insurance scheme and one or more voluntary or
optional continued insurance schemes, the person concerned shall be
subject exclusively to the compulsory insurance scheme;
– under two or more voluntary or optional continued insurance
schemes, the person concerned may join only the voluntary or
optional continued insurance scheme for which he has opted.
3. However, in respect of invalidity, old age and death (pensions), the person
concerned may join the voluntary or optional continued insurance scheme
of a Member State, even if he is compulsorily subject to the legislation of
another Member State, to the extent that such overlapping is explicitly or
implicitly admitted in the first Member State.’
National legislation
8.
The Kingdom of the Netherlands draws a distinction between two types of
social security, namely the ‘general social security scheme’ and the ‘social
security scheme for employed persons’.
9.
The general social security scheme covers the following laws:
– Law on the general scheme for family benefits (Algemene Kinderbijslagwet;
‘AKW’);
– Law on the general scheme for survivors’ pensions (Algemene Nabestaan-
denwet; ‘ANW’);
– Law on the general scheme for old-age pensions (Algemene Ouder-
domswet; ‘AOW’);
– Law on the general scheme for special medical expenses cover (Algemene
wet bijzondere ziektekosten; ‘AWBZ’).
10.
The social security scheme for employed persons is covered by the following
social security laws:
– Law on the sickness scheme (Ziektewet; ‘ZW’);
– Law on sickness funds (Ziekenfondswet; ‘ZFW’);
– Law on the unemployment scheme (Werkloosheidswet; ‘WW’);
– Law on insurance against incapacity for work (Arbeidsongeschiktheids-
verzekering; ‘WAO’).
11.
As regards the general social security scheme, the Netherlands legislation
initially provided for a scheme under which persons residing outside the
Netherlands who were entitled to certain long-term benefits in the Nether-
lands were compulsorily insured under certain conditions.
12.
Article 8 of the Netherlands decree on the extension and restriction of the
category of persons insured in respect of national insurance (Besluit
European Journal of Social Security, Volume 7 (2005), No. 2
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Case Notes and Commentaries
uitbreidung en beperking kring verzekerden volksverzekeringen) of 3 May
1989 provided:
‘1. A person who has transferred his residence outside the Netherlands and
who, on the date of his departure, was entitled to:
a. a benefit under the WAO ...
...
– shall be insured under national insurance.
2. A person who does not reside in the Netherlands and who is entitled to a
benefit ... referred to in paragraph 1, shall be insured under national
insurance where that right stems from compulsory insurance under
national insurance or from voluntary insurance under Article 45 of the
AOW and Article 63 of the ANW, and provided that that benefit ... is at
least equal to 35% of the minimum wage.’
13.
The decree of 24 December 1998, which came into force on 1 January 1999,
repealed the decree of 3 May 1989. Article 26 of the decree of 24 December
1998 provided that Article 8 of the old decree remained in force for a
transitional period until 1 January 2000. On that date, compulsory insurance
under some branches of social security came to an end.
14.
Persons who no longer had to be compulsory insured as from 1 January 2000
were able, however, to be voluntarily insured on the basis of Article 2(1) of the
decree of 2 January 1990 (Besluit inzake vrijwillige verzekering). Under that
article, that option is exercisable for one year after termination of the
compulsory insurance. A simple declaration to the Sociale verzekeringsbank
(the social security institution) suffices to continue cover.
15.
Article 35 of the AOW provides:
‘1. A person who was previously insured and who is aged 15 or over may be
insured voluntarily, provided that he has not reached the age of 65, during
a maximum period of 10 years commencing on the day after the date on
which the compulsory insurance came to an end. ...
3. The maximum period of 10 years referred to in subparagraph 1 shall not
apply to: ... a person who was previously insured, is aged 50 on the date on
which the compulsory insurance came to an end, does not reside in the
Netherlands and is entitled to the payment of:
i. a benefit under the Law on insurance against incapacity for work
(WAO) ...’
16.
Under Article 63 of the ANW:
‘1. A person who was previously insured may be insured voluntarily, under
conditions to be determined by administrative regulation or by the
provisions implementing that regulation, during periods after his 15th
birthday but prior to his 65th birthday in respect of which he is not
insured.
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Intersentia
Case Notes and Commentaries
2. The conditions referred to in the first subparagraph shall include
concurrent exercise of the option, referred to in Article 45 of the General
law on old-age benefit, to be insured voluntarily.’
17.
Compulsory insurance continues, however, in respect of some branches of
social security. Article 27 of the decree of 24 December 1998 retains the
obligation to be insured under the AKW until the youngest child has reached
the age of 18. Article 7 of that decree provides that a person is insured under
the AWBZ if he does not reside in the Netherlands, is insured under the ZFW
and, pursuant to a regulation of the Council of the European Union, may
claim benefits in the State in which he resides which are paid to him from the
sickness fund insurance budget.
18.
The following conditions apply to the requirement to be insured under the
social security scheme for employed persons, in particular as regards the
WAO, the...
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