Court of Justice of the European Communities (including Court of First Instance Decisions)

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Cite as: [1979] EUECJ R-129/78

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61978J0129
Judgment of the Court (Second Chamber) of 8 March 1979.
Bestuur van de Sociale Verzekeringsbank d'Amsterdam v A.E. Lohmann.
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Case 129/78.
European Court reports 1979 Page 00853
Greek special edition 1979:I Page 00467
Portuguese special edition 1979:I Page 00461
Spanish special edition 1979 Page 00507

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - SCHEMES TO WHICH THEY APPLY - SPECIAL SCHEMES FOR CIVIL SERVANTS AND PERSONS TREATED AS SUCH - EXCLUSION
( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 1 ( J ) AND 4 ( 4 ))
2 . SOCIAL SECURITY FOR MIGRANT WORKERS - FAMILY ALLOWANCES FOR DEPENDENT CHILDREN OF PENSIONERS - PENSION GRANTED UNDER SPECIAL SCHEME FOR CIVIL SERVANTS OR PERSONS TREATED AS SUCH - EXCLUSION FROM SPHERE OF APPLICATION OF COMMUNITY RULES
( REGULATION NO 1408/71 OF THE COUNCIL , ART . 77 ( 2 ) ( A ))

1 . THE FACT THAT ARTICLE 1 ( J ) OF REGULATION NO 1408/71 REFERS ONLY TO ARTICLE 4 ( 1 ) AND ( 2 ) DOES NOT REMOVE THE SIGNIFICANCE OF THE LIMITATION CONTAINED IN PARAGRAPH ( 4 ) OF THAT ARTICLE , WHICH INTER ALIA EXCLUDES FROM THE SPHERE OF APPLICATION OF THE REGULATION SPECIAL SCHEMES FOR CIVIL SERVANTS AND PERSONS TREATED AS SUCH .

2 . A PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY WITHIN THE MEANING OF ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 DOES NOT INCLUDE A PENSION GRANTED UNDER A SPECIAL SCHEME FOR CIVIL SERVANTS OR PERSONS TREATED AS SUCH .

IN CASE 129/78
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) ( UTRECHT ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
BESTUUR VAN DE SOCIALE VERZEKERINGSBANK ( MANAGEMENT OF THE CENTRAL SOCIAL SECURITY INSTITUTION ), AMSTERDAM ,
AND
A . E . LOHMANN

ON THE INTERPRETATION OF THE EXPRESSION ' ' LEGISLATION ' ' APPEARING IN ARTICLE 1 ( J ) AND ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 OF THE COUNCIL OF THE EEC OF 14 JUNE 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1BY AN ORDER DATED 6 JUNE 1978 , WHICH REACHED THE COURT ON 9 JUNE , THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) DECIDED TO REFER TWO QUESTIONS TO THE COURT IN THE CONTEXT OF PROCEEDINGS PENDING BEFORE IT . THOSE PROCEEDINGS INVOLVED A NETHERLANDS NATIONAL , A FORMER LOCAL OFFICIAL IN THE NETHERLANDS , WHO SINCE 1 MAY 1978 HAD BEEN DRAWING AN INVALIDITY PENSION IN PURSUANCE OF THE NETHERLANDS LAW ON PENSIONS FOR OFFICIALS . THE PERSON CONCERNED MOVED TO BELGIUM AND THEN ASKED THE COMPETENT NETHERLANDS INSTITUTION TO GRANT HIM FAMILY ALLOWANCES IN RESPECT OF A DAUGHTER WHO HAD REMAINED IN THE NETHERLANDS . HE RECEIVED A NEGATIVE ANSWER SINCE ACCORDING TO THE INSTITUTION THE RESIDENCE CONDITION PRESCRIBED BY ARTICLE 17 ( 1 ) OF THE LAW ON FAMILY ALLOWANCES FOR CHILDREN OF WAGE-EARNERS AND PERSONS TREATED AS SUCH WAS NOT FULFILLED . THE CENTRALE RAAD VAN BEROEP THEREUPON DECIDED TO REFER THE FOLLOWING QUESTIONS TO THE COURT :
' ' DOES THE FACT THAT ARTICLE 1 ( J ) OF REGULATION NO 1408/71 REFERS ONLY TO PARAGRAPHS ( 1 ) AND ( 2 ) OF ARTICLE 4 SIGNIFY THAT THE LIMITATION CONTAINED IN PARAGRAPH ( 4 ) OF THAT ARTICLE DOES NOT RELATE TO THE MEANING OF THE TERM ' LEGISLATION ' WHERE THE TERM IS USED ELSEWHERE IN THE REGULATION?

IN CONNEXION WITH THE ANSWER TO THE PREVIOUS QUESTION OR INDEPENDENTLY THEREOF , MUST ' PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY ' IN ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 ALSO INCLUDE PENSIONS PAYABLE UNDER A SPECIAL SCHEME FOR CIVIL SERVANTS AND PERSONS TREATED AS SUCH?
' '
FIRST QUESTION
2UNDER ARTICLE 1 ( J ) OF REGULATION NO 1408/71 , THE EXPRESSION ' ' LEGISLATION ' ' MEANS ALL THE LAWS , REGULATIONS AND OTHER PROVISIONS AND ALL OTHER PRESENT OR FUTURE IMPLEMENTING MEASURES OF EACH MEMBER STATE RELATING TO THE SECTORS OF SOCIAL SECURITY AND SCHEMES FOR SOCIAL SECURITY COVERED BY ARTICLE 4 ( 1 ) AND ( 2 ) OF THE SAID REGULATION . REFERENCE IS THUS MADE TO THE POSITIVE DEFINITION OF THE MATERIAL SCOPE OF THE REGULATION .

3THE ABSENCE OF AN EXPRESS REFERENCE IN ARTICLE 1 ( J ) TO ARTICLE 4 ( 4 ) IS EXPLAINED BY THE FACT THAT THERE WAS NO NEED TO DEFINE NEGATIVELY THE MATERIAL SCOPE OF THE REGULATION BY REPEATING THE EXPRESS EXCLUSION OF SPECIAL SCHEMES FOR CIVIL SERVANTS AND PERSONS TREATED AS SUCH . MOREOVER THAT EXCLUSION IS ONLY THE LOGICAL CONSEQUENCE OF ARTICLE 48 ( 4 ) OF THE TREATY WHICH EXCLUDES ' ' EMPLOYMENT IN THE PUBLIC SERVICE ' ' FROM THE APPLICATION OF THE PROVISIONS RELATING TO FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .

4THE ANSWER TO BE GIVEN TO THE FIRST QUESTION PUT BY THE CENTRALE RAAD VAN BEROEP SHOULD THEREFORE BE THAT THE FACT THAT ARTICLE 1 ( J ) OF REGULATION NO 1408/71 REFERS ONLY TO ARTICLE 4 ( 1 ) AND ( 2 ) DOES NOT REMOVE THE SIGNIFICANCE OF THE LIMITATION CONTAINED IN PARAGRAPH ( 4 ) OF THAT ARTICLE .

SECOND QUESTION
5ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 USES THE CONCEPT OF ' ' A PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY ' ' . THE EXPRESSION ' ' LEGISLATION ' ' USED IN THAT PROVISION HAS THE SCOPE DEFINED IN ARTICLE 1 ( J ) OF THE REGULATION AS EXPLAINED IN ANSWER TO THE FIRST QUESTION .

6THE ANSWER TO BE GIVEN TO THE SECOND QUESTION OF THE CENTRALE RAAD VAN BEROEP SHOULD THEREFORE BE THAT A PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY WITHIN THE MEANING OF ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 DOES NOT INCLUDE A PENSION GRANTED UNDER A SPECIAL SCHEME FOR CIVIL SERVANTS OR PERSONS TREATED AS SUCH .

COSTS
7THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE CENTRALE RAAD VAN BEROEP , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER )
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CENTRALE RAAD VAN BEROEP ( UTRECHT ) BY ORDERS OF 13 DECEMBER 1977 AND 6 JUNE 1978 , HEREBY RULES :
1 . THE FACT THAT ARTICLE 1 ( J ) OF REGULATION NO 1408/71 REFERS ONLY TO ARTICLE 4 ( 1 ) AND ( 2 ) DOES NOT REMOVE THE SIGNIFICANCE OF THE LIMITATION CONTAINED IN PARAGRAPH ( 4 ) OF THAT ARTICLE .

2 . A ' ' PENSION UNDER THE LEGISLATION OF ONE MEMBER STATE ONLY ' ' WITHIN THE MEANING OF ARTICLE 77 ( 2 ) ( A ) OF REGULATION NO 1408/71 DOES NOT INCLUDE A PENSION GRANTED UNDER A SPECIAL SCHEME FOR CIVIL SERVANTS OR PERSONS TREATED AS SUCH .