1.

Is a person who, whilst resident in the Netherlands, for certain periods of their working life worked in Germany for a limited number of hours per week or per month under casual contracts (‘minijobs’) covered by Regulation (EEC) No 1408/71? ( 2 ) Where that person is subject to German social security legislation, does that regulation preclude their exclusion from the Netherlands statutory old-age pension scheme? Does that regulation or the rules of primary law on freedom of movement for workers preclude the Netherlands legislation from excluding that same person from his national social security scheme, that is to say the Netherlands social security scheme, on the sole ground that he is subject to the German social security scheme, even where that person also has no entitlement to family benefits or benefits under the old-age pension scheme in Germany?

2.

This case thus offers the Court the opportunity to examine the always delicate matter of workers who, because they have exercised their right to freedom of movement, have either lost the cover afforded by their State of residence without obtaining that afforded by the State of employment, whose legislation applies only formally to casual employment, or had their old-age pension reduced to an amount below that corresponding to their total years of employment because periods of employment in their Member State of residence are not aggregated with periods of employment in the State of employment. ( 3 )

3.

Article 1 of Regulation No 1408/71 provides:

‘For the purpose of this Regulation:

…’

4.

Article 2(1) of the Regulation, entitled ‘Persons covered’, 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.’

5.

Article 13 of Regulation No 1408/71, which is part of Title II thereof, entitled ‘Determination of the legislation applicable’, lays down general rules in the following terms:

‘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:

…

6.

According to 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.’

7.

Point I.E of Annex I to that regulation states, in relation to Germany, who should be considered as ‘employed persons’ or ‘self-employed persons’ within the meaning of Article 1(a)(ii) of that same regulation. It is worded as follows:

‘If the competent institution for granting family benefits in accordance with Chapter 7 of Title III of the Regulation is a German institution, then within the meaning of Article 1(a)(ii) of the Regulation:

8.

Article 84(1) and (2) of Regulation No 1408/71, entitled ‘Cooperation between competent authorities’, provides:

‘1.   The competent authorities of Member States shall communicate to each other all information regarding:

2.   For the purposes of implementing this Regulation, the authorities and institutions of Member States shall lend their good offices and act as though implementing their own legislation. The administrative assistance given by the said authorities and institutions shall, as a rule, be free of charge. However, the competent authorities of the Member States may agree to certain expenses being reimbursed.’

9.

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.

10.

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

11.

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.

12.

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,

13.

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.

14.

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.

15.

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 not or were not insured.

16.

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.

17.

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.

18.

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

19.

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 decision of an organisation of public international law, the legislation of another State applies to them.

20.

During the periods at issue in the disputes in the main proceedings, several successive decrees on the extension or restriction of the category of persons insured in respect of social insurance (Besluit uitbreiding en beperking kring verzekerden volksverzekeringen) (‘the BUB’) were adopted pursuant to Article 6(3) of the AOW and the AKW. Consequently, the Decree of 19 October 1976 (Stb. 557) (‘the 1976 BUB’), the Decree of 3 May 1989 (Stb. 164) (‘the 1989 BUB’) and the Decree of 24 December 1998 (Stb. 746) (‘the 1999 BUB’) were applicable to the circumstances at issue in the cases in the main proceedings.

21.

Under Article 2(1)(a) of the 1976 BUB, the following persons are not insured persons within the meaning, inter alia, of the AOW: residents who are engaged in gainful employment outside the Netherlands and who, with regard to that employment, are insured under a foreign statutory scheme concerning benefits for old age and death and also concerning child allowances in force in the country in which they work.

22.

After the 1976 BUB was replaced by the 1989 BUB, Article 10(1) of the latter, in the version applicable from 1 July 1989 to 1 January 1992, provided that ‘the following persons are not insured under the social security scheme: residents who work exclusively outside the Netherlands’. In respect of the period from 1 January 1992 to 1 January 1997, that same provision of the 1989 BUB provided that ‘the following persons are not insured under the social security scheme: residents who, for a continuous period of at least three months, work exclusively outside the Netherlands’. According to the wording applicable from 1 January 1997 to 1 January 1999, Article 10(1) of the 1989 BUB provided that ‘the following persons are not insured under the social security scheme: residents who, for a continuous period of at least three months, work exclusively outside the Netherlands, unless that work is carried out by virtue of an employment relationship with an employer who lives or is established in the Netherlands’.

23.

On 1 January 1999, the 1989 BUB was replaced by the 1999 BUB. Article 12 of the latter provides that ‘persons who live in the Netherlands and who, for a continuous period of at least three months, work exclusively outside the Netherlands, are not insured under the social security system unless that work is carried out exclusively by virtue of an employment relationship with an employer who lives or is established in the Netherlands’.

24.

The 1989 BUB and the 1999 BUB both contained a hardship clause, in Articles 25 and 24 respectively, which empowered the Raad van bestuur van de Sociale verzekeringsbank (the Management Board of the Social Insurance Bank, the ‘SVB’) to derogate in certain cases from other provisions of the decree in order to deal with an unacceptable degree of unfairness which might arise from the insurance obligation or the exclusion therefrom by virtue of the decree in question (the 1989 BUB) or not to apply articles of that decree or to derogate from them to the extent that their application, in the light of the importance of the extension and reduction of the category of insured persons, would lead to an unacceptable degree of unfairness arising exclusively from the insurance obligation or the exclusion therefrom by virtue of the decree in question (the 1999 BUB).

25.

It is apparent from the order for reference that the applicants in the main proceedings, Ms Franzen, Mr Giesen and Mr van den Berg, are all Netherlands nationals and are resident in the Netherlands.

26.

Ms Franzen received family benefits in the Netherlands under the AKW for her daughter, whom she was bringing up alone. In November 2002, she informed the SVB that, since 1 January 2001, she had been working in Germany for 20 hours per week as a hairdresser. Since Ms Franzen’s earnings from that employment were very low, she was not covered by any statutory social insurance scheme, apart from the German statutory insurance against accidents, and was not entitled to cover under any of the other German social security schemes.

27.

By decision of 25 February 2003, the SVB withdrew the family benefits with effect from 1 October 2002.

28.

Because her income from her work in Germany was inadequate, Ms Franzen obtained from the Netherlands municipality in which she was resident a supplementary benefit under the General Law on Assistance (Algemene bijstandswet) and also under the Law on Work and Assistance (Wet Werk en Bijstand). It is apparent from the observations submitted to the Court by the SVB that the latter benefit constitutes a form of social assistance to which, under Article 4(4) of Regulation No 1408/71, that regulation does not apply.

29.

The SVB also states in its observations that, by letter dated 21 September 2003, Ms Franzen applied under Article 24 of the 1999 BUB for her exclusion from social insurance cover to be removed. By decision of 15 March 2004, the SVB rejected that application on the ground that Ms Franzen was not insured either under EU law or under Netherlands law.

30.

On 30 January 2006, Ms Franzen again applied for family benefits, which the SVB granted to her by decision of 27 March 2006, with effect from the first quarter of 2006. By letter of 5 June 2007, an application was made on behalf of Ms Franzen for family benefits to be awarded to her with effect from the fourth quarter of 2002.

31.

By decision of 5 July 2007, the SVB determined that, as of the first quarter of 2006, Ms Franzen was no longer entitled to family benefits, but it decided not to reclaim the amount wrongly paid. By decision of 16 November 2007, the objection lodged by Ms Franzen against that decision was declared unfounded and her request for revision was moreover rejected.

32.

On 6 February 2008, pending the appeal against the decision of 5 July 2007, the SVB took a new decision by which the reasoning for the decision of 16 November 2007 was amended, stating that the requests for family benefits were rejected on the ground that, under Article 13(2) of Regulation No 1408/71, German legislation alone applied to Ms Franzen, thereby precluding the application of Netherlands social insurance.

33.

By judgment of 5 August 2008, the Rechtbank Maastricht (District Court, Maastricht) declared the appeals against the decisions of 16 November 2007 and 6 February 2008 to be unfounded. The dispute between the parties to the main proceedings concerns whether Ms Franzen was insured for the purposes of the AKW as of 1 October 2002.

34.

Mr Giesen’s wife worked in Germany, firstly for two periods in 1970 and then as a ‘geringfügig Beschäftigte’ (person in minor employment) during the period from 19 May 1988 to 12 May 1993. She worked, inter alia, as a sales assistant in a clothing store for a limited number of hours per month under an on-call agreement under which she came to work when requested by her employer, but was not required to comply with her employer’s requests.

35.

On 22 September 2006, Mr Giesen submitted an application for an old-age pension and a partner’s allowance under the AOW, which the SVB granted by decision of 3 October 2007. However, the partner’s allowance was reduced by 16% on the ground that, during the period when she had worked in Germany, Mr Giesen’s wife had not been insured under any social insurance scheme. Mr Giesen lodged an objection against that decision with regard to the reduction of the allowance. By decision of 20 May 2008, that objection was dismissed as unfounded.

36.

By judgment of 13 October 2008, the Rechtbank Roermond (District Court, Roermond) dismissed the appeal against the decision of 20 May 2008 as unfounded. That court held that Mr Giesen’s wife was not covered by the Netherlands legislation, since it had not been established that she had not worked in Germany for more than three months. The dispute between the parties before the referring court concerns whether, during the period from 19 May 1988 to 31 December 1992, Mr Giesen’s wife was insured for the purposes of the AOW.

37.

Mr van den Berg worked in Germany between 25 June and 24 July 1972 and between 1 January 1990 and 31 December 1994. The order for reference does not contain any indications as to the nature of his employment. On 17 January 2008, Mr van den Berg submitted an application for an old-age pension under the AOW. By decision of 1 August 2008, the SVB awarded him an AOW pension, but a reduction of 14% was applied on the ground that Mr van den Berg had been uninsured for more than seven years. By decision of 25 November 2008, his objection to that decision was declared to be in part well founded and the reduction was set at 10%.

38.

By judgment of 19 October 2009, the Rechtbank Maastricht dismissed the appeal brought against the decision of 25 November 2008 as unfounded. The dispute between Mr van den Berg and the SVB before the referring court concerns whether, during the period between 1 January 1990 and 31 December 1994, Mr van den Berg was insured under the AOW.

39.

The Centrale Raad van Beroep (Netherlands Higher Social Security Court), to which the applicants in the main proceedings appealed, takes the view that, during the periods which are the subject of the dispute, the latter could be considered to be employed persons within the meaning of Article 2 of Regulation No 1408/71, read in conjunction with Article 1(a) thereof, and that the AOW and the AKW fall within the scope ratione materiae of that regulation.

40.

However, the question might arise as to whether, during the periods at issue, the parties to the main proceedings were subject to German legislation pursuant to Article 13(2), introductory sentence and subparagraph (a), of Regulation No 1408/71 and, if so, whether the exclusive operation of that provision means that the Netherlands legislation is not applicable. In this context, the referring court cites the judgment in Kits van Heijningen (C‑2/89, EU:C:1990:183), which is concerned with part-time work, and wonders whether that case-law also applies to an on-call contract.

41.

The referring court notes that, in the present disputes, it is not disputed that the parties were not insured under German legislation in respect of their employment, which would entitle them, as appropriate, to claim an old-age pension or family benefits. It also points out that, during the period from 1 July 1989 to 31 December 1992, Mr Giesen’s wife and, during the periods relevant to them, Mr van den Berg and Ms Franzen should be considered as not being insured under the AOW and the AKW under national law. In order to determine whether EU law precludes such exclusion, it is important to have regard for the provisions of EU law relating to freedom of movement for workers (Article 45 TFEU) and freedom of movement for EU citizens (Articles 20 TFEU and 21 TFEU).

42.

In those circumstances, by order of 1 July 2013, received at the Court Registry on 4 July 2013, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

43.

The SVB, the Netherlands Government, the United Kingdom Government and the European Commission submitted written observations. The representatives of Ms Franzen, the Kingdom of the Netherlands, the United Kingdom and the Commission presented oral argument at the hearing held on 25 June 2014.

44.

Looking firstly at the context of the disputes in the main proceedings, at issue is, on the one hand, the refusal by the authorities of the State of residence, in this case the SVB, to grant Ms Franzen family benefits and, on the other hand, the reduction by those same authorities of the partner’s allowance and the old-age pension granted to Mr Giesen and Mr van den Berg respectively, on the ground that it follows from Regulation No 1408/71 that, during the periods at issue, the parties to the main proceedings came under the legislation of the State of employment, that is to say German legislation. In fact, it is apparent from the documents before the Court that, during those periods, they were covered in the State of employment solely by insurance against accidents at work and were not entitled either in the Netherlands (the State of residence) or in Germany (the State of employment) to family benefits or an old-age pension, as appropriate.

45.

Next, it should be noted that it is not disputed that the benefits in question fulfil the criteria to be regarded as ‘old-age benefits’ within the meaning of Article 4(1)(c) of Regulation No 1408/71 or as ‘family benefits’ within the meaning of Article 4(1)(h) of that regulation. The situations at issue in the disputes in the main proceedings therefore fall within the scope ratione materiae of that regulation.

46.

Lastly, the first question raised by the referring court in this case concerns the scope ratione personae of Regulation No 1408/71. That question, which, in my view, should be answered in the affirmative, does not present any particular difficulties and so will be examined only briefly.

47.

The referring court asks in substance whether Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract is subject to the legislation of the State of employment under Article 13(2)(a) of that regulation and, if so, whether that resident is subject to it solely on the days on which the employment is performed or also on other days. ( 4 )

48.

In order to answer that question, I will first of all give a brief summary of the scope ratione personae of Regulation No 1408/71 in order to confirm that the parties to the main proceedings may be considered to be employed persons within the meaning of Article 2(1) of that regulation. I will then analyse the case-law of the Court concerning the applicability of Regulation No 1408/71 in the context of part-time work, before going on to examine the consequences of the provisions of Point I.E of Annex I to that regulation regarding the specific case of Ms Franzen.

49.

The persons covered by Regulation No 1408/71 are defined by Article 2 thereof. According to Article 2(1), three criteria need to be satisfied in order for it to be considered that a worker is covered by the regulation. First, he must be employed or self-employed. ( 5 ) Those two terms describe any person who has compulsory or voluntary insurance ( 6 ) under one of the social security schemes referred to in Article 1(a)(i) and (ii) of that regulation and in accordance with the terms and conditions of those schemes. ( 7 ) Secondly, the worker must be a national of a Member State and, thirdly, he must currently be or have been subject to the legislation of one or more Member States.

50.

The Court has pointed out that a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. ( 8 )

51.

In the case at issue, it is not disputed that the parties to the main proceedings worked in Germany for certain periods during which they were insured in that Member State. The referring court points out that they engaged in minor employment having the status of ‘geringfügig Beschäftigte’, ( 9 ) which means that they were at least covered by insurance against accidents at work (‘Unfallversicherung’). Consequently, I feel that there can be no doubt that the parties to the main proceedings must be considered to be employed persons within the meaning of Article 2(1)(a) of Regulation No 1408/71.

52.

As is apparent from all the written observations submitted to the Court, the case-law arising from Kits van Heijningen ( 10 ) is applicable to the circumstances of the case at issue. In that judgment, the Court gave an interpretation of Article 13(2) of Regulation No 1408/71 in the context of part-time work which, in my view, should be applied by analogy to casual employment relationships such as those in the case at issue.

53.

The Court held that there is nothing in Article 1(a) or Article 2(1) of Regulation No 1408/71 which permits certain categories of persons to be excluded from the scope of the regulation on the basis of the amount of time they devote to their activities. Consequently, a person must be considered to be covered by Regulation No 1408/71 if he meets the conditions laid down in Article 1(a) in conjunction with Article 2(1) of the regulation, irrespective of the amount of time which that person devotes to his activities. ( 11 ) In the Court’s view, Article 13(2)(a) of Regulation No 1408/71 makes no distinction between full-time and part-time employment. Moreover, the objective which it pursues would be frustrated if it were to be considered that the legislation of the Member State of employment was applicable only during the periods when the person concerned pursued his activity, and not during those periods when he did not. ( 12 )

54.

In that regard, it seems clear to me that the decisive factor determining whether a person falls within the scope ratione personae of the regulation is, as may be seen from point 50 of this Opinion, that he is covered, even only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71. The existence of an employment relationship, the type of employment relationship, the fact that it is a part-time contract or an on-call contract and also the number of hours worked are therefore of no significance. ( 13 ) Consequently, in the case at issue, the fact that the parties to the main proceedings engaged in minor employment which did not exceed a certain threshold in terms of hours or earnings, for example as ‘geringfügig Beschäftigte’ under German law, is not relevant.

55.

I therefore find that Ms Franzen, Mr Giesen and Mr van den Berg satisfy the criteria established by Article 1(a) in conjunction with Article 2(1) of Regulation No 1408/71, irrespective of the amount of time which they devoted to the pursuit of their activities during the periods at issue. They therefore fall within the scope ratione personae of that regulation and, by virtue of Article 13(2)(a) thereof, are subject to the legislation of the State of employment. The subjection to the German legislation applies not only in respect of the days on which they performed their activity, but also to the days when they did not perform their activity. That subjection continues as long as the person concerned is insured against at least one contingency in the State of employment. ( 14 )

56.

In the particular case of Ms Franzen, the Commission points out that the provision contained in Point I.E of Annex I to Regulation No 1408/71 concerning Germany modifies the scope ratione personae of that regulation.

57.

It may be seen from points 49 to 51 of this Opinion that Ms Franzen falls within the scope ratione personae of Regulation No 1408/71. Consequently, by virtue of Article 13(2)(a) of that regulation, the legislation applicable to Ms Franzen is the German legislation. ( 15 ) Could she therefore receive family benefits in Germany?

58.

In that regard, it follows from the case-law of the Court that, where the competent institution for granting family benefits is, in accordance with Chapter 7 of Title III of Regulation No 1408/71, a German institution, the definition contained in Article 1(a) of that regulation is displaced by the definition in Point I.E (Germany) of Annex I thereto. ( 16 ) Thus, only persons compulsorily insured under one of the schemes mentioned in Point I.E of Annex I to Regulation No 1408/71 may be considered to be ‘employed persons’ or ‘self-employed persons’ within the meaning of Article 1(a)(ii) of that regulation. ( 17 ) In fact, under that provision of that annex, ‘employed person’ means ‘a person compulsorily insured against unemployment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits’. This is not the case with Ms Franzen. She comes under the ‘general rule’ in Article 1(a)(i) of Regulation No 1408/71, that is to say, the definition of ‘an employed person’ within the meaning of that regulation for the purposes of the benefits for which she is insured, in this case, insurance against accidents at work. Conversely, she cannot be considered to be an employed person for the purposes of the grant of German family benefits because of the ‘special rule’ contained in Annex I. Thus, that rule is of a special nature compared with the general system referred to in Article 1(a) of that regulation. In fact, the provisions of Annex I, read in conjunction with Article 1(a)(ii) of Regulation No 1408/71, determine the consequential connection between the type of social security benefit sought by the worker (in this case family allowances) and the criteria which that worker must satisfy in order to be recognised as entitled to the benefit. The EU legislature therefore felt it necessary to stipulate what the terms ‘employed person’ and ‘self-employed person’ within the meaning of that regulation mean when the person concerned is insured under a social security scheme which applies to all residents, as is the case with family benefits in Germany. ( 18 ) Consequently, it is my view that, during the periods at issue, Ms Franzen cannot be considered to be an employed person within the meaning of Point I.E of Annex I to Regulation No 1408/71, on the ground that she does not satisfy the criteria laid down in Article 1(a)(ii), in conjunction with Annex I to that regulation, in order to receive family benefits in Germany.

59.

Thus, as regards the grant of family benefits under the German legislation, the concept of employed person must be understood as referring exclusively to employed persons who satisfy the definition arising from a combined reading of the provisions of Article 1(a)(ii) and Point I.E of Annex I to that regulation.

60.

It is my view that Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract is subject to the legislation of the State of employment by virtue of Article 13(2)(a) of that regulation. That subjection to the legislation of the State of employment applies not only to the days on which he performs his employment activities, but also to the days on which he does not perform those activities. That subjection will continue for as long as the person concerned is insured against at least one contingency in the State of employment.

61.

I propose to examine questions 2 and 3 together. The referring court asks in substance whether, in the circumstances of this case, Article 13(2)(a), in conjunction with Article 13(1) of Regulation No 1408/71, precludes national legislation from excluding from its national social security scheme a migrant worker subject to the social security legislation of the State of employment. The referring court also asks whether the rules of primary law on the freedom of movement for workers and/or citizens of the Union preclude such an exclusion if the migrant worker is excluded from his national social security scheme on the ground that he is subject to the social security legislation of the State of employment, whereas that worker also has no entitlement to family benefits or old-age benefits in the State of employment. Furthermore, it is asking whether the fact that it was possible for the worker to take out voluntary insurance or to request the competent authority to conclude an agreement, as referred to in Article 17 of Regulation No 1408/71, is significant for the purposes of the answer to the previous question.

62.

In order to provide the referring court with a useful answer, I consider that we should first of all examine the foundations of the mechanism for the coordination of national social security legislation set up by Regulation No 1408/71.

63.

First of all, I would point out that, according to the settled case-law of the Court, the system introduced by Regulation No 1408/71 is based on mere coordination of national laws in the field of social security and is not intended to harmonise them. ( 19 ) Since the Member States’ social security systems are characterised by their territoriality, ( 20 ) their coordination is based inter alia on rules of attachment analogous to those applying in private international law. The purpose of that coordination is to determine the legislation applicable to employed or self-employed persons who make use, under various circumstances, of their right of freedom of movement, ( 21 ) leaving in being differences between the Member States’ social security systems and, consequently, in the rights of persons working in the Member States. ( 22 ) That coordination therefore does not alter the Member States’ powers in such matters, provided however that they act in conformity with EU law and, in particular, in accordance with the purpose of the coordinating regulations and the provisions of the Treaty on the freedom of movement of persons. ( 23 )

64.

Consequently, that mechanism for the coordination of social security schemes, which was set up from the very beginning of the construction of Europe, ( 24 ) is designed to facilitate free movement of persons within the European Union, whilst respecting the special characteristics of national social security legislation, and not to penalise workers who exercise their right to free movement. ( 25 )

65.

From its first judgments, the Court has held that the regulations adopted to give effect to Article 48 TFEU must be interpreted ‘in the light of the objective pursued by that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers’. ( 26 ) It has held that Articles 45 TFEU to 48 TFEU constitute the basis, the framework and the bounds of the social security regulations. ( 27 ) The Court has therefore given rulings on the coordination of national schemes in the light of Articles 45 TFEU and 48 TFEU.

66.

Secondly, conflicts of law concerning the applicable national legislation arise from a combination of the exercise of freedom of movement of persons on the one hand and from the continuing existence of national social security systems on the other. Those conflicts of law, whether they are positive conflicts where several laws may be applicable to a given situation or negative conflicts where no legislation is applicable, ( 28 ) are barriers to freedom of movement in the territory of the European Union.

67.

Thirdly, in order to remedy positive or negative conflicts of law, the provisions of Title II of Regulation No 1408/71 (of which Article 13 is part), which constitute a complete and uniform system of conflict rules, ( 29 ) are designed to ensure that the persons concerned are subject to the social security system of only one Member State. In fact, the Court has repeatedly ruled that those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, ( 30 ) but also to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation applicable to them. ( 31 )

68.

In that regard, Article 13(1) of Regulation No 1408/71 enshrines the principle that the legislation of a single Member State is applicable to a given situation, ( 32 ) which means inter alia that contributions are paid to a single social security scheme. In particular, Article 13(2)(a) of that regulation clearly provides that, subject to Articles 14 to 17, ‘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’ (lex loci laboris). ( 33 )

69.

Thus, subject to the exceptions provided for by Regulation No 1408/71, ( 34 ) this system for resolving conflicts of national social security legislation, which is based on the principle that the legislation of only one Member State applies, is mandatory and, according to the settled case-law of the Court, has the effect that ‘Member States are not entitled to determine the extent to which their own legislation or that of another Member State is applicable since they are under an obligation to comply with the provisions of [EU] law in force’. ( 35 )

70.

It is in the light of these considerations that I will examine together questions 2 and 3 raised by the referring court.

71.

As may be seen from points 67 and 68 of this Opinion, according to settled case-law of the Court, the provisions of Title II of Regulation No 1408/71, which determine the legislation applicable to workers moving within the European Union, make them subject to the social security system of a single Member State, ( 36 ) in order to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue. ( 37 ) Consequently, the rules determining the legislation applicable have exclusive effect, which means that, subject to exceptions provided for in Regulation No 1408/71, ( 38 ) at no time may any other legislation be applicable apart from that determined by the rules on conflicts of law. ( 39 )

72.

However, recent judgments in cases concerning the payment of family benefits seem to indicate a relaxation of the Court’s case-law regarding the strict application of the principle that the legislation of only one Member State is applicable. ( 40 )

73.

In its written observations, the Commission states that that relaxation should not however be interpreted as meaning that the law on old-age insurance of the State of residence should also be applied by virtue of the national legislation of that State to an employed person moving within the European Union to whom the social security legislation of the State of employment applies.

74.

I agree with that view. Any other interpretation would, in general terms, mean that insured persons would have to pay contributions to the competent authorities of two or more Member States, which is not compatible with the aims of Regulation No 1408/71, as I have emphasised in point 68 of this Opinion. In that regard, recital 9 in the preamble to that regulation states that the instances in which a person should be subject simultaneously to the legislation of two Member States as an exception to the general rule should be as limited in number and scope as possible.

75.

In any event, in the interests of clarity and in order to provide the referring court with a useful answer, I feel it is necessary to examine the Court’s recent case-law which, in certain cases, appears to accept the simultaneous application of the legislation of two Member States.

76.

Can we interpret the aforementioned judgments as meaning that they are applicable to the case at issue? In their written observations, the SVB and the Commission express the view that a distinction should be made between the case-law arising from Ten Holder ( 43 ) and Luijten ( 44 ) and that established by Bosmann ( 45 ) and Hudzinski and Wawrzyniak. ( 46 ) As may be seen from point 71 of this Opinion, in the first two judgments, the Court confirmed the principle that the legislation of only one Member State is applicable under the provisions of Title II of Regulation No 1408/71. By contrast, in the second two judgments, the Court held that its interpretation of Article 13(2)(a) of Regulation No 1408/71 did not preclude ‘a Member State, which is not the competent State but which does not subject the right to child benefit to conditions of employment or insurance, from being able to grant such a benefit to one of its residents since the possibility of such a grant arises, in actual fact, from its legislation’. ( 47 )

77.

Like the SVB and the Commission, I consider that the latter two judgments cannot be interpreted as being applicable to the case at issue. As a reminder, Ms Bosmann received family benefits on the sole ground that she was resident in Germany and Mr Hudzinski received them under a provision of German law whereby any person who does not have his permanent or habitual residence within German territory but is subject there to unlimited income tax liability or is treated as so liable is, in addition, entitled to family benefits. Unlike the situation in this case, the German legislation conferred a specific right on the persons concerned under national law, based either on residence or on liability to income tax, whilst that legislation does not expressly exclude from the benefit of that right persons subject under EU law to the legislation of another Member State, such as the Member State of residence.

78.

In the cases at issue in the main proceedings, Article 6a, introductory sentence and subparagraph (b), of the AOW and Article 6a of the AKW exclude from the scope of that legislation persons who, under Regulation No 1408/71, are subject to the legislation of another Member State. Thus, Ms Franzen, the wife of Mr Giesen and Mr van den Berg are subject to the German legislation and, consequently, in principle, during the periods at issue, cannot receive a family benefit under the AKW or an old-age pension under the AOW, as appropriate.

79.

However, in order to tailor my proposed answers to the questions referred for a preliminary ruling to the circumstances at issue in the main proceedings, I feel it is necessary to set out my arguments in two stages.

80.

It is first of all necessary to determine which national legislation is applicable under Title II of Regulation No 1408/71 to the circumstances at issue in the main proceedings. In that regard, it may be seen from my analysis of question 2 that, under Article 13(2)(a) of Regulation No 1408/71, read in conjunction with Article 13(1) of that regulation, the German legislation is the legislation applicable to the situations of Ms Franzen, Mr Giesen’s wife and Mr van den Berg.

81.

Secondly, now that the applicable legislation has been determined, we need to examine in the light of the provisions of Regulation No 1408/71 and also of the fundamental freedoms, the consequences of applying the legislation of the State of employment to the specific circumstances at issue in the main proceedings.

82.

Regarding the circumstances at issue in the main proceedings, it may be recalled that Ms Franzen, Mr Giesen’s wife and Mr van den Berg are subject, under Regulation No 1408/71, to the social security legislation of the State of employment. It is apparent from the documents before the Court that, during the periods at issue, they were compulsorily insured only against accidents at work, without having access to any other branch of German social security insurance, which meant that they lost the possibility of obtaining cover under Dutch legislation from the social security scheme of their State of residence. As a result, the parties to the main proceedings lost the social security cover afforded by their State of residence, without obtaining that of their State of employment. Consequently, in reality they have no cover either from the social security scheme of their State of employment, on the ground of the limited number of hours worked or their low earnings, or from that of their State of residence, on the ground that they were subject to the legislation of another Member State. Consequently, Ms Franzen lost her family benefits, whilst the old-age pension and the partner’s allowance of Mr van den Berg and Mr Giesen respectively were reduced to amounts below those corresponding to their total years of employment, on the ground that periods of employment in their State of residence were not aggregated with those in their State of employment.

83.

In fact, as the Commission rightly maintains, it is obvious that, by exercising their right to freedom of movement, the parties to the main proceedings found themselves in a situation which was more unfavourable than that of a worker who had spent his entire working life in a single Member State because, as a result, they lost part of their entitlement to a pension. If they had remained in the Netherlands and had pursued the same activities there, they would not have lost their entitlement.

84.

Is that unfavourable consequence compatible with the provisions of Regulation No 1408/71 as interpreted in the light of the rules of primary law on freedom of movement for workers?

85.

As the SVB and the Netherlands and the United Kingdom Governments argue, the Court has on many occasions held that Member States retain the power to determine in their legislation, in compliance with EU law, the conditions for granting benefits under a social security scheme. ( 48 ) It has also held that, in social security matters, EU law, and in particular primary law, cannot guarantee to an insured person that a move to another Member State will have no effects on the type or level of benefits that they may claim in their State of origin. ( 49 ) Thus, the application, possibly under the provisions of Regulation No 1408/71, following a change of Member State of residence, of national legislation that is less favourable as regards social security benefits may in principle be compatible with the requirements of primary EU law on freedom of movement for persons. ( 50 ) The fact that the exercising of the freedom of movement may not be neutral in this sphere, in that it may to varying degrees be advantageous or even disadvantageous, depending on the circumstances, is a direct result of the fact that the difference between the laws of the Member States has been maintained. ( 51 )

86.

However, it is none the less true that, according to the settled case-law of the Court, such compatibility would exist only to the extent that, in particular, the national legislation concerned does not place the worker at a disadvantage compared to those who pursue all their activities in the Member State where it applies. ( 52 ) The Court has also held that the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of their exercise of the right to freedom of movement, workers were to lose the social security advantages guaranteed to them by the legislation of one Member State. ( 53 ) Regarding the provisions of Title II of Regulation No 1408/71, the Court has found that they are intended to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation applicable to them. ( 54 )

87.

That absence of applicable legislation on social security schemes, which would enable Ms Franzen to receive family benefits and Mr van den Berg and Mr Giesen to receive an old-age pension, is one of the features of the circumstances at issue in the main proceedings. Even if there can be no doubt that, under Article 13(2)(a) of Regulation No 1408/71, the legislation formally applicable to the circumstances at issue in the main proceedings is the German legislation, the results of its application are not in my opinion compatible either with Regulation No 1408/71, the purpose of which is to facilitate freedom of movement for persons within the European Union, or with Articles 45 TFEU and 48 TFEU, on which it is based. In fact, for the parties to the main proceedings, the matter at issue is not whether the exercise of their right to freedom of movement was to varying degrees advantageous or even disadvantageous, but rather the total absence of protection under any social security scheme during the periods at issue, which, in my view, is contrary not only to Regulation No 1408/71 but also to Articles 45 TFEU and 48 TFEU.

88.

I therefore wonder to what extent it would be possible, whilst respecting the coordination mechanism set up by Regulation No 1408/71 and more specifically the principle that the legislation of only one Member State is applicable, to resolve the situation, which is as regrettable as it is unacceptable, in which the parties in the main proceedings find themselves as a result of exercising their fundamental right to freedom of movement.

89.

In that regard, I think that, in the solution to be proposed to the Court, account should be taken of the level of benefits granted by the legislation of the State of employment where that legislation, as in the circumstances at issue in the main proceedings, excludes workers from the protection offered by the fundamental branches of social security. Taking account of the level of protection in order to determine the applicable legislation where that protection is virtually non-existent, such as for on-call work or minor employment, is consistent with the social progress promoted by the Treaty and that approach is to be found in recital 1 in the preamble to Regulation No 1408/71, according to which ‘the provisions for coordination of national social security legislation fall within the framework of freedom of movement for workers and should contribute towards the improvement of their standard of living and conditions of employment’.

90.

Thus, in my opinion, it would be appropriate to temporarily suspend the application of the legislation of the State of employment where its application is triggered by short-term on-call or minor employment contracts and to apply the legislation of the State of residence. That suspension should be restricted to the period during which the legislation of the State of employment maintains the exclusion of the aforementioned categories of workers from the fundamental branches of social security other than insurance against accidents at work. ( 55 )

91.

The adoption of such a measure to suspend the application of the law of the Member State of employment in my opinion follows from a reading of Article 13(1) and (2)(a) of Regulation No 1408/71 in the light of Articles 45 TFEU and 48 TFEU and would prevent a situation where a worker who, exercising his right to freedom of movement, has taken up employment in more than one Member State is, without objective justification, treated less favourably than a worker who has spent his entire working life in a single Member State. Such an interpretation of Regulation No 1408/71 would also make it possible to take into consideration the new forms of working and the career paths of EU citizens, in particular situations involving casual employment, such as on-call or minor employment contracts. ( 56 )

92.

The fact that it is possible for a worker to take out voluntary insurance ( 57 ) or to request the competent authority to conclude an agreement as referred to in Article 17 of Regulation No 1408/71 is, in my opinion, of no significance for the purposes of the proposed answer.

93.

I would however point out that, on the basis of Article 17 of Regulation No 1408/71, the competent authorities of the Member States concerned or the bodies designated by those authorities may by common agreement provide for exceptions to the provisions of Articles 13 to 16 of that regulation in the interest of certain categories of persons or of certain persons. It should have been possible for the competent authorities of the Member States concerned to envisage an agreement to that effect relating to employees with short-term on-call or minor employment contracts with a view to preventing undesirable situations such as those at issue in the main proceedings.

94.

Article 13(2)(a) of Regulation No 1408/71, read in conjunction with paragraph (1) of that same article, in the light of Articles 45 TFEU and 48 TFEU, must be interpreted, in circumstances such as those at issue in the main proceedings, as not precluding national legislation from excluding a migrant worker from its national social security scheme on the ground that he is subject to the social security legislation of his State of employment. However, where that worker is not entitled to family benefits or benefits under the old-age pension scheme in the State of employment, in view of the fact that the social protection afforded by the legislation of the State of employment is virtually non-existent, where its application has been triggered by on-call or minor employment contracts, its application should be temporarily suspended in favour of the legislation of the State of residence. That temporary suspension would apply solely during the period in which the legislation of the State of employment maintained the exclusion of those categories of workers from social security other than insurance against accidents at work, and solely to those other branches. It is for the national court to carry out any verifications necessary, having regard to the circumstances at issue in the main proceedings.

95.

The fact that it was possible for a worker to take out voluntary insurance or to request the competent authority to conclude an agreement for the purposes of Article 17 of Regulation No 1408/71 is not significant in that regard.

96.

In the light of all the foregoing considerations, I propose that the Court should reply as follows to the questions referred by the Centrale Raad van Beroep: