61994J0227

++++

Social security for migrant workers ° Invalidity insurance ° Calculation of benefits ° Special rules for the implementation of the Netherlands legislation relating to insurance against incapacity for work ° Period of paid employment or period treated as such ° Concept ° Employment as a teacher under a contract of employment concluded with a private educational establishment ° Included ° Affiliation, during that period of employment, to a special scheme excluded from the scope of Regulation No 1408/71 ° No effect

(EC Treaty, Art. 51; Council Regulation No 1408/71, Art. 46(2) and Point 4(a) of Annex V)

Point 4(a) of the section on the Netherlands contained in Annex V of Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, in the version applicable as from 1 February 1982, is to be interpreted as meaning that periods of paid employment include periods in which a person worked as a teacher under a contract of employment concluded with a private educational establishment, even if that person was insured during that period under a special scheme for civil servants and persons treated as such excluded from the scope of the regulation. If the period of paid employment subject in that way to that special scheme was not treated as a period of insurance for the purposes of Annex V to the regulation, the person completing it would thereby suffer a disadvantage contrary to Article 51 of the Treaty, whereas to take that period into account does not entail any overlapping of different entitlements.

In Case C-227/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the Arrondissementsrechtbank (District Court), Amsterdam for a preliminary ruling in the proceedings pending before that court between

E. Olivieri-Coenen

and

Bestuur van de Nieuwe Algemene Bedrijfsvereniging,

on the interpretation of point 4(a) of the section on the Netherlands contained in Annex V to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2),

THE COURT (First Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Chamber, P. Jann and L. Sevón, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Mrs Olivieri-Coenen, by J.H. Schoordijk, Advocate, Venlo,

° the Bestuur van de Nieuwe Algemene Bedrijfsvereniging, by C.R.J.A.M. Brent, Head of the Administrative and Legal Affairs Section of the association "Gemeenschappelijke Administratiekantoor", acting as Agent,

° the Commission of the European Communities, by B.J. Drijber and M. Patakia, members of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Bestuur van de Nieuwe Algemene Bedrijfsvereniging, represented by M.A. Broekhuis, Legal Assistant in the Administrative and Legal Affairs Section of the association "Gemeenschappelijke Administratiekantoor", acting as Agent, and of the Commission at the hearing on 6 July 1995,

after hearing the Opinion of the Advocate General at the sitting on 13 July 1995,

gives the following

Judgment

1 By an order of 1 August 1994, received at the Court on 3 August 1994, the Arrondissementsrechtbank (District Court), Amsterdam referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question concerning the interpretation of point 4(a) of the section on the Netherlands contained in Annex V to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2, hereinafter "the Regulation").

2 That question was raised in proceedings between the Nieuwe Algemene Bedrijfsvereniging and Mrs Olivieri-Coenen concerning the calculation of an allowance for incapacity for work.

3 By virtue of Article 4(4) of the Regulation, the Regulation does not apply to "special schemes for civil servants and persons treated as such".

4 Section I (Netherlands) of Annex V of the Regulation, as amended by the Act concerning the conditions of accession of the Hellenic Republic and the adjustments to the Treaties (OJ 1979 L 291, p. 17, hereinafter "the section on the Netherlands"), provides in point 4(a):

"For the purposes of the provisions of Article 46(2) of the Regulation, periods of paid employment and periods treated as such completed under Netherlands legislation before 1 July 1967 shall also be considered as periods of insurance completed under Netherlands legislation on insurance against incapacity for work."

5 In the Netherlands, the Wet op de Arbeidsongeschiktheid (Law on Insurance against Incapacity for Work, hereinafter "the WAO"), which regulates entitlement to invalidity allowance, does not apply to civil servants or persons treated as such. The latter persons are covered in this regard by the Pensioenwet (Law on Pensions) 1922, which was replaced in 1965 by the Algemene Burgelijke Pensioenwet (General Pensions Law, hereinafter "the ABPW"). The transitional scheme provided for by the 1965 Law maintained entitlement to a deferred invalidity pension provided for by the Pensioenwet for a period of five years, that is until 1 January 1971, so that persons who became unable to perform their civil servant' s duties after 1 January 1971 may not claim entitlement to a deferred invalidity pension.

6 Mrs Olivieri-Coenen, who was born on 9 January 1927 and lived in the Netherlands until 1959, taught in a private school in the Netherlands from 1 September 1946 to 29 January 1959 under a contract of employment governed by civil law.

7 Between 1 September 1947 and 29 January 1959 she was insured under the special scheme provided for by the Pensioenwet for civil servants and persons treated as such.

8 After marrying an Italian national she acquired Italian nationality and in 1959 went to live in Italy where she worked with her husband in a hotel belonging to them. Mrs Olivieri-Coenen was insured in Italy from March 1960 to July 1981.

9 On 26 February 1979 she ceased occupational activity for reasons of health. The competent Italian institution granted her an invalidity pension with effect from 1 February 1982. Mrs Olivieri-Coenen also applied for a Netherlands invalidity allowance calculated pro rata temporis, in accordance with Article 46(2) of the Regulation.

10 On 13 March 1991 the Nieuwe Algemene Bedrijfsvereniging, the competent Netherlands insurance institution, informed her that, pursuant to the WAO, it had granted her, as from 1 February 1982, an invalidity allowance calculated pro rata temporis on the basis of only one year' s insurance in the Netherlands, namely for the period from September 1946 to September 1947, when she became subject to the Pensioenwet, applicable to civil servants and persons treated as such. Since, moreover, she had become unfit for work after 1 January 1971, Mrs Olivieri-Coenen could not claim any benefit under the transitional arrangements laid down by the ABPW.

11 Mrs Olivieri-Coenen appealed against that decision to the Arrondissementsrechtbank (District Court), Amsterdam, claiming that she had been in paid employment in the Netherlands for a period of 11 years.

12 The Arrondissementsrechtbank, which was unsure whether the periods during which Mrs Olivieri-Coenen had worked as a teacher under a contract of employment concluded with a private educational establishment had to be regarded as periods of paid employment for the purposes of Article 46(2) of the Regulation when she was insured during that period under the special scheme applicable to civil servants and persons treated as such, decided to stay proceedings and refer the following question to the Court for a preliminary ruling:

"Is point 4(a) of (the section on the Netherlands) of Annex V to Regulation No 1408/71, in the version in force on 1 February 1982, to be interpreted as meaning that the periods of employment referred to therein may include periods during which a person was employed as a teacher under a contract of employment with a private school even if during that period she was insured under a special scheme for civil servants and persons treated as such?"

13 First of all, periods in which a person works as a teacher under a contract of employment concluded with an educational establishment must be held to constitute periods of paid employment.

14 Even though special schemes for civil servants or persons treated as such are excluded from the scope of the Regulation, it is quite clear from the actual wording of point 4(a) of the section on the Netherlands that any period of paid employment whatever must be regarded as a period of insurance for the purposes of Article 46(2).

15 The fact that a person has been subject to a special scheme for civil servants or persons treated as such during a certain period of employment does not mean that the period in question does not constitute a period of paid employment or a period treated as such for the purposes of point 4(a) of the section on the Netherlands.

16 In paragraph 20 of its judgment in Case C-12/93 Drake [1994] ECR I-4337 the Court stated that there is no hierarchy between the provisions of the Regulation, on the one hand, and those of Annex VI (formerly Annex V), on the other, since all those provisions were adopted pursuant to Article 51 of the Treaty and must therefore be interpreted together in the light of the purpose of that article, which is to contribute to freedom of movement for migrant workers, a principle which is one of the foundations of the Community.

17 Finally, if the period of paid employment subject to the special scheme for civil servants or persons treated as such was not treated as a period of insurance for the purposes of point 4(a) of the section on the Netherlands, the person completing it would thereby suffer a disadvantage contrary to Article 51 of the Treaty whereas to take that period into account does not entail any overlapping of different entitlements.

18 It follows that point 4(a) of the section on the Netherlands, in the version applicable on 1 February 1982, is to be interpreted as meaning that periods of paid employment include periods in which a person worked as a teacher under a contract of employment concluded with a private educational establishment, even if that person was insured during that period under a special scheme for civil servants and persons treated as such.

Costs

19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Arrondissementsrechtbank, Amsterdam, by order of 1 August 1994, hereby rules:

Point 4(a) of the section on the Netherlands contained in Annex V of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community is to be interpreted as meaning that periods of paid employment include periods in which a person worked as a teacher under a contract of employment concluded with a private educational establishment, even if that person was insured during that period under a special scheme for civil servants and persons treated as such.