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Cite as: [1982] EUECJ R-275/81

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61981J0275
Judgment of the Court (Second Chamber) of 23 September 1982.
G.F. Koks v Raad van Arbeid.
Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands.
Social security - Calculation of rights acquired in differenct Member States - Discrimination between men and women.
Case 275/81.
European Court reports 1982 Page 03013

SOCIAL SECURITY FOR MIGRANT WORKERS - AFFILIATION TO A SOCIAL SECURITY SCHEME - CONDITIONS - APPLICATION OF NATIONAL LEGISLATION - AFFILIATION OF EITHER SPOUSE TO A SOCIAL SECURITY SCHEME SUBJECT TO AFFILIATION OF THE OTHER SPOUSE TO THE SAME SCHEME - WHETHER PERMISSIBLE
( REGULATION NO 3 OF THE COUNCIL ; REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL )

IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME . A NATIONAL PROVISION OF A MEMBER STATE WHICH PROVIDES THAT A MARRIED WOMAN RESIDING IN THAT MEMBER STATE WHOSE HUSBAND IS NOT INSURED THERE FOR THE PURPOSE OF AN OLD-AGE PENSION BECAUSE HE IS SO INSURED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IS NOT INSURED FOR THOSE PURPOSES EITHER , EVEN IF SHE HAS RESIDED IN THE TERRITORY OF THE FIRST-MENTIONED MEMBER STATE AND HAS BEEN EMPLOYED THERE , IS NOT INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW IN FORCE , IF THOSE PROVISIONS AS THEY STAND AT PRESENT DO NOT PRECLUDE THE MEMBER STATE FROM MAKING THE RIGHT OF EITHER SPOUSE TO DERIVE BENEFITS UNDER A SOCIAL SECURITY SCHEME DEPENDENT ON THE AFFILIATION OF THE OTHER SPOUSE TO THE SAME SCHEME .

IN CASE 275/81
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 ACTION PENDING BEFORE THAT COURT BETWEEN
G . F . KOKS , RESIDING AT BOXTEL ,
AND
RAAD VAN ARBEID ( LABOUR COUNCIL ), ' S-HERTOGENBOSCH ,

ON THE INTERPRETATION OF ARTICLE 12 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND ARTICLE 13 ( 2 ) ( A ) 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 ,

1 BY ORDER OF 29 SEPTEMBER 1981 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 19 OCTOBER 1981 , THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 12 ( 1 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JOURNAL OFFICIEL 1958 , P . 561 ) AND ARTICLE 13 ( 2 ) ( A ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ) P . 416 ) IN ORDER TO DETERMINE WHETHER CERTAIN PROVISIONS OF THE NETHERLANDS LEGISLATION ON PENSIONS ARE COMPATIBLE WITH COMMUNITY LAW .

2 THE QUESTION WAS RAISED IN CONNECTION WITH A DISPUTE BETWEEN THE RAAD VAN ARBEID ( LABOUR COUNCIL ) ' S-HERTOGENBOSCH AND A NETHERLANDS NATIONAL , THE APPELLANT IN THE MAIN ACTION , WHOSE PENSION WAS REDUCED UNDER THE NETHERLANDS LEGISLATION .

3 THE APPELLANT IN THE MAIN ACTION WORKED IN THE NETHERLANDS FROM 1926 TO 1959 MAINLY AS A ROAD CONSTRUCTION WORKER . FROM 3 SEPTEMBER 1959 TO 8 AUGUST 1969 HE WAS ENGAGED IN THE SAME WORK IN THE FEDERAL REPUBLIC OF GERMANY . AS FROM 8 AUGUST 1969 , HE TOOK UP EMPLOYMENT AGAIN IN THE NETHERLANDS FOR FOUR MONTHS UNTIL HE BECAME INCAPACITATED FOR WORK . HE RECEIVED BENEFITS ON ACCOUNT OF HIS DISABILITY FROM NETHERLANDS AND GERMAN SOURCES . HIS WIFE , WHO IS ALSO A NETHERLANDS NATIONAL , WORKED IN THE NETHERLANDS FROM 1962 TO 1971 .
4 IN 1976 , ON REACHING THE AGE OF 65 , HE RECEIVED ON OLD-AGE PENSION THE AMOUNT OF WHICH WAS HOWEVER REDUCED BY 18% UNDER THE NATIONAL LEGISLATION IN QUESTION .

5 UNDER THE LEGISLATION IN FORCE IN THE NETHERLANDS , THE ALGEMENE OUDERDOMSWET ( GENERAL LAW ON OLD AGE , HEREINAFTER REFERRED TO AS ' ' THE OLD-AGE LAW ' ' ) OF 31 MAY 1956 AND ITS IMPLEMENTING DECREES , AN OLD-AGE PENSION IS IN PRINCIPLE GRANTED TO INSURED PERSONS WHO HAVE REACHED THE AGE OF 65 . THE CATEGORY OF INSURED PERSONS INCLUDES PERSONS RESIDING IN THE NETHERLANDS BUT NOT PERSONS WHO RESIDE THERE BECAUSE THEY HAVE A CONTRACT OF EMPLOYMENT AND ARE ACCORDINGLY INSURED UNDER THE PROVISIONS OF FOREIGN LEGISLATION . SIMILARLY , A MARRIED WOMAN RESIDING IN THE NETHERLANDS WHOSE HUSBAND IS NOT INSURED UNDER THE PROVISIONS OF THE RELEVANT NETHERLANDS LEGISLATION IS NOT REGARDED AS INSURED . IN GENERAL , MARRIED WOMEN ARE NOT ENTITLED , AS SUCH , TO AN OLD-AGE PENSION . HOWEVER , A MARRIED MAN IS ENTITLED TO A HIGHER PENSION THAN A SINGLE PERSON . PROVISION IS ALSO MADE FOR THE PENSION TO BE REDUCED BY 1% FOR EACH FULL CALENDAR YEAR IN WHICH THE MARRIED MALE BENEFICIARY WAS NOT INSURED BETWEEN THE AGES OF 15 AND 65 YEARS . THE SAME REDUCTION APPLIED TO THE BENEFICIARY ' S WIFE FOR EACH CALENDAR YEAR , WITHIN THE SAME AGE BRACKET , IN WHICH SHE WAS NOT INSURED .

6 UNDER THAT LEGISLATION , THE APPELLANT ' S PENSION WAS REDUCED , INITIALLY BY 9% OF THE TOTAL AMOUNT IN RESPECT OF THE PERIOD OF NINE YEARS IN WHICH HE WAS INSURED IN THE FEDERAL REPUBLIC OF GERMANY AND , SUBSEQUENTLY , BY 9% OF THE SAME AMOUNT ON THE GROUND THAT HIS WIFE HAD NOT BEEN INSURED DURING THE SAME PERIOD .

7 SINCE THE PROBLEM OF THE COMPATIBILITY OF THAT LEGISLATION WITH COMMUNITY LAW AND , IN PARTICULAR , WITH REGULATIONS NOS 3 AND 1408/71 , WAS RAISED , THE CENTRALE RAAD VAN BEROEP STAYED THE PROCEEDINGS AND REFERRED TO THE COURT THE FOLLOWING QUESTION :
' ' MUST THE RULE ( AS SET FORTH IN ARTICLE 12 ( 1 ) OF REGULATION NO 3 AND ARTICLE 13 ( 2 ) ( A ) OF REGULATION NO 1408/71 ) ACCORDING TO WHICH A WORKER EMPLOYED IN THE TERRITORY OF A MEMBER STATE IS SUBJECT TO THE LEGISLATION OF THAT STATE BE INTERPRETED AS MEANING THAT A NATIONAL PROVISION OF A MEMBER STATE IS INCOMPATIBLE WITH THAT RULE IN PROVIDING THAT A MARRIED WOMAN WHO RESIDES IN THAT MEMBER STATE AND WHOSE HUSBAND IS NOT INSURED FOR THE PURPOSES OF AN OLD-AGE PENSION BECAUSE HE IS SO INSURED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IS NOT INSURED FOR SUCH PURPOSES EITHER , EVEN IF SHE HAS RESIDED IN THE TERRITORY OF THE FIRST-MENTIONED MEMBER STATE AND HAS BEEN EMPLOYED THERE?
' '
8 IT IS NECESSARY TO OBSERVE THAT ARTICLE 12 OF REGULATION NO 3 AS WELL AS ARTICLE 13 ( 2 ) ( A ) OF REGULATION NO 1408/71 BOTH LAY DOWN , IN VIRTUALLY IDENTICAL TERMS , THE PRINCIPLE THAT A WORKER IS SUBJECT THROUGHOUT THE PERIOD OF HIS EMPLOYMENT TO THE LEGISLATION OF THE MEMBER STATE IN WHOSE TERRITORY HE WORKS .

9 HOWEVER , THE COURT HAS ALREADY POINTED OUT , IN ITS JUDGMENT OF 24 APRIL 1980 IN CASE 110/79 COONAN ( 1980 ) ECR 1445 , THAT IT IS FOR THE LEGISLATURE OF EACH MEMBER STATE TO LAY DOWN THE CONDITIONS CREATING THE RIGHT OR THE OBLIGATION TO BECOME AFFILIATED TO A SOCIAL SECURITY SCHEME OR TO A PARTICULAR BRANCH UNDER SUCH A SCHEME .

10 IT MUST HOWEVER BE EMPHASIZED THAT ALTHOUGH THE MEMBER STATES ARE AT LIBERTY TO ADOPT RULES IN RESPECT OF QUESTIONS RELATING TO SOCIAL SECURITY SCHEMES , THEY ARE NONE THE LESS UNDER AN OBLIGATION TO COMPLY WITH THE PROVISIONS OF COMMUNITY LAW IN FORCE .

11 APART FROM COUNCIL DIRECTIVE NO 79/7/EEC OF 19 DECEMBER 1978 ON THE PROGRESSIVE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF SOCIAL SECURITY ( OFFICIAL JOURNAL 1979 , L 6 P . 24 ) WHICH ALLOWS THE MEMBER STATES A PERIOD OF SIX YEARS IN WHICH TO IMPLEMENT THE NECESSARY PROVISIONS , THERE IS NO RULE OF COMMUNITY LAW PRECLUDING THE MEMBER STATES FROM MAKING THE RIGHT OF EITHER SPOUSE TO DERIVE BENEFITS UNDER A SOCIAL SECURITY SCHEME DEPENDENT ON THE AFFILIATION OF THE OTHER SPOUSE TO THE SAME SCHEME .

12 CONSEQUENTLY , UNDER COMMUNITY LAW AS IT STANDS AT PRESENT , A NATIONAL PROVISION OF A MEMBER STATE WHICH PROVIDES THAT A MARRIED WOMAN RESIDING IN THAT MEMBER STATE WHOSE HUSBAND IS NOT INSURED THERE FOR THE PURPOSES OF AN OLD-AGE PENSION BECAUSE HE IS SO INSURED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IS NOT INSURED FOR THOSE PURPOSES EITHER , IF SHE HAS RESIDED IN THE TERRITORY OF THE FIRST-MENTIONED MEMBER STATE AND HAS BEEN EMPLOYED THERE , IS NOT INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW IN FORCE .

COSTS
13 THE 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 NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER OF 29 SEPTEMBER 1981 , HEREBY RULES :
A NATIONAL PROVISION OF A MEMBER STATE WHICH PROVIDES THAT A MARRIED WOMAN RESIDING IN THAT MEMBER STATE WHOSE HUSBAND IS NOT INSURED THERE FOR THE PURPOSES OF AN OLD-AGE PENSION BECAUSE HE IS SO INSURED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE , IS NOT INSURED FOR THOSE PURPOSES EITHER , EVEN IF SHE HAS RESIDED IN THE TERRITORY OF THE FIRST-MENTIONED MEMBER STATE AND HAS BEEN EMPLOYED THERE , IS NOT INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW IN FORCE .