On February 4, 2016 on the website of the Court of Justice of the European Union the Opinion of Advocate General Sharpston in Case C-465/14 Raad van bestuur van de Sociale verzekeringsbank versus F.Wieland and H. Rothwangl was published (ECLI:EU:C:2016:77).
Must Article 3 and Article 94(1) and (2) of Regulation No 1408/71 be interpreted as meaning that a former seafarer who belonged to the crew of a vessel with a home port in a Member State, who had no place of residence on shore and who was not a national of a Member State, cannot be denied (in part) an old-age pension, after the State of which that seafarer is a national acceded to the European Union or after Regulation No 1408/71 entered into force for that State, solely on the ground that that former seafarer was not a national of the (first-mentioned) Member State during the period of the (claimed) insurance cover?
Factual background, procedure and questions referred
· Mr Wieland was born in Austria on 20 March 1943. From 11 October 1962 to 7 March 1966 he worked for the Holland-Amerika Lijn (‘HAL’). In May 1966 he moved to the United States of America where on 29 August 1969 he acquired American nationality and consequently lost his Austrian nationality. In April 2008 Mr Wieland applied for an old-age pension. The Board of Management of the Social Insurance Bank (Raad van bestuur van de Sociale verzekeringsbank; ‘the RSvb’) rejected his request by a decision dated 15 April 2008. On 3 October 2008, Mr Wieland notified the RSvb that his main residence was in Austria.
· Mr Rothwangl was born on 7 December 1943. He is an Austrian national. From 6 November 1962 to 23 April 1963 he worked for HAL. He has received an Austrian invalidity pension (Erwerbsunfähigkeitspension) since 1 March 1998 and a Swiss invalidity pension (Invalidenrente) since 1 September 1998. From 29 November 1998 to 1 December 2008 Mr Rothwangl also received invalidity benefit from the Netherlands authorities under the Law on insurance against incapacity for work (Wet op arbeidsongeschiktheidsverzekering). On 12 January 2009 he applied for an old-age pension with effect from 1 December 2008. The RSvb rejected that request by decision dated 26 May 2009.
· Both Mr Wieland and Mr Rothwangl successfully challenged the decisions of the RSvb before the Rechtbank (District Court) Amsterdam. The RSvb has appealed against those rulings to the referring court.
· The Centrale Raad van Beroep (Higher Social Security Court) first states in its order for reference that it has taken account of the judgment of the European Court of Human Rights (‘the Strasbourg Court’) in Wessels-Bergervoet v. The Netherlands. That case concerned a claim made under Article 14 of the European Convention on Human Rights (‘the ECHR’) which prohibits discrimination, in conjunction with Article 1 of Protocol No 1 thereto (which protects the right to property). The applicant there, who was eligible for old-age pension benefits under the AOW, submitted that the decision of the competent Netherlands institution reducing her pension discriminated against her on grounds of sex in so far as the reason for the reduction was that at the relevant time a married woman was insured only for those periods when her husband was insured, whereas there was no equivalent restriction for married men. The referring court explains that the Strasbourg Court’s reasoning in that case has been applied by the Netherlands courts to other cases involving seafarers’ pension rights. It considers that the position in relation to Mr Wieland and Mr Rothwangl differs from those cases and that the distinction drawn here on grounds of nationality is justified for the purposes of Article 14 ECHR. However, it wonders whether Regulation No 1408/71, read in conjunction with Regulation No 859/2003, and/or Articles 18 TFEU and 45 TFEU, may assist them.
· Accordingly, the Centrale Raad van Beroep (Higher Social Security Court) requests a preliminary ruling on the following questions:
(1) Must Article 3 and Article 94(1) and (2) of Regulation No 1408/71 be interpreted as meaning that a former seafarer who belonged to the crew of a vessel with a home port in a Member State, who had no place of residence on shore and who was not a national of a Member State, cannot be denied (in part) an old-age pension, after the State of which that seafarer is a national acceded to the European Union or after Regulation No 1408/71 entered into force for that State, solely on the ground that that former seafarer was not a national of the (first-mentioned) Member State during the period of the (claimed) insurance cover?
(2) Must Articles 18 TFEU and 45 TFEU be interpreted as precluding a rule of a Member State under which a seafarer who belonged to the crew of a vessel with a home port in that Member State, who had no place of residence on shore and who is not a national of any Member State, was excluded from insurance cover for purposes of an old-age pension, whereas, under that rule, a seafarer who is a national of the Member State in which the vessel has its home port and who is otherwise in the same situation is deemed to be insured, if the State of which the first-named seafarer is a national has in the meanwhile, by the time of the determination of the pension, acceded to the European Union or Regulation No 1408/71 has in the meanwhile entered into force for that State?
(3) Must Questions 1 and 2 be answered in the same way in the case of a (former) seafarer who, at the time of his employment, was a national of a State which at a later date accedes to the European Union, but who, at the time of that accession or the entry into force of Regulation No 1408/71 for that State, and at the time of submitting his claim to entitlement to an old-age pension, was not a national of any Member State, but to whom Regulation No 1408/71 nevertheless applies pursuant to Article 1 of Regulation No 859/2003?
· Written observations were submitted by the RSvb, the Netherlands Government and the European Commission. All three parties made oral submissions at the hearing on 16 September 2015, as did the Kingdom of Spain. Mr Wieland and Mr Rothwangl have not made written or oral submissions in these proceedings.
Conclusion
In the light of the foregoing considerations I suggest that the Court should answer the questions raised by the Centrale Raad van Beroep (Higher Social Security Court), the Netherlands, as follows:
· A person claiming old-age pension benefits who was not a national of a Member State during the period on the basis of which he claims entitlement does not acquire rights within the meaning of the transitional provisions laid down in Article 94(1) to (3) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community, in circumstances where he has not completed a period of insurance under the legislation of a Member State before his Member State acceded to the European Union, because the period in question does not constitute a period of insurance under the legislation of that Member State. That is so even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71. National rules which excluded such a claimant from insurance under the social security scheme of the Member State concerned during his period of residence and employment are not prohibited by Article 3 of that regulation.
· Article 18 TFEU and Article 45 TFEU do not, in the context of Austria’s accession to the European Union, preclude national rules such as those at issue in the main proceedings.
· A person who falls within the scope of Article 1 of Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, and who claims entitlement to old-age pension benefits on the basis of a period before 1 June 2003, is not entitled to rely on the transitional provisions in Article 2(1) to (3) of that regulation where the period in question does not constitute a period of insurance under the legislation of a Member State, even though during that period he resided and was employed in the Member State that must determine his entitlement to benefits in accordance with the provisions of Regulation No 1408/71.
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