INTERNATIONAL TAX PLAZA - CJEU rules in Case C-543/13 Fischer-Lintjens (the term “payable”, as used in Article 27 et seq. of Regulation (EEC) No 1408/71)

(June 4, 2015)

On June 4, 2015 the European Court of Justice (CJEU) ruled in Case C‑543/13 Raad van bestuur van de Sociale verzekeringsbank versus E. Fischer-Lintjens (ECLI:EU:C:2015:359).

· Must the term “payable”, as used in Article 27 et seq. of Regulation (EEC) No 1408/71, be interpreted as meaning that the decisive factor for the purpose of determining the point in time from which a pension is payable is the date of the decision to make an award, after which the pension is paid, or the commencement date of the pension awarded with retroactive effect?

· If the term “payable” refers to the commencement date of the pension awarded with retroactive effect:

Can this be reconciled with the fact that the person entitled to receive the pension who comes under Article 27 of Regulation No 1408/71 cannot, under Netherlands legislation, take out health care insurance with the same retroactive effect?

The dispute in the main proceedings and the questions referred for a preliminary ruling

· Ms Fischer-Lintjens lived in the Netherlands from 1 December 1934, the date of her birth, to 1 September 1970. She then lived in Germany until 1 May 2006, when she returned to the Netherlands, where she has lived since then.

· From October 2004 Ms Fischer-Lintjens received a widow’s pension from the competent German institution. After leaving Germany to settle in the Netherlands in 2006, she registered by means of an E 121 form with the Netherlands health care insurer CZ, and from 1 June 2006 was able, under Article 28 of Regulation No 1408/71, to receive benefits in kind in the Netherlands with the cost borne by the competent German institution. She paid contributions in Germany for her health care insurance.

· On 20 October 2006 Ms Fischer-Lintjens obtained from the CVZ a certificate of non-insurance for the purposes of the AWBZ, intended to demonstrate to the Netherlands authorities responsible for levying contributions that no contributions were due in the Netherlands. She stated on the form she had to complete in order to obtain the certificate that she did not receive any pensions or benefits in kind under Netherlands legislation but a pension under German legislation.

· The certificate was valid, if circumstances did not change, from 1 June 2006 to 31 December 2010.

· Although Ms Fischer-Lintjens reached the age of 65 and became entitled to a pension in the Netherlands under the AOW on 1 December 1999, she did not apply for that pension until May 2007. According to the referring court, she had, prior to submitting her application, wrongly believed that she was not entitled to a pension.

· By decision of 8 November 2007, amended on 24 April 2008, the SVB awarded and paid Ms Fischer-Lintjens, in accordance with Article 16(2) of the AOW, a pension with retroactive effect from one year before the first day of the month in which she made the application, that is, from 1 May 2006.

· Ms Fischer-Lintjens did not inform CZ or the CVZ or the German health care insurance institution of that changed situation until October 2010.

· On 21 October 2010 Ms Fischer-Lintjens filled in a form sent by the CVZ in connection with her application for extension of her certificate of non-insurance, stating that from 1 May 2006 she had been in receipt of an old-age pension under the AOW.

· By decision of 2 November 2010, the CVZ informed Ms Fischer-Lintjens that she was required to be insured under the AWBZ and the Zvw and should therefore pay contributions in the Netherlands, as she was no longer in any of the situations referred to in Article 21(1) of KB 746 and had consequently been subject to an insurance obligation from June 2006. The CVZ thereupon withdrew her certificate of non-insurance (‘the withdrawal decision’) and CZ cancelled her health care insurance policy. The withdrawal and the cancellation both had retroactive effect from 1 June 2006.

· The German health care insurance institution then refunded contributions of over EUR 5 000 which Ms Fischer-Lintjens had paid in Germany from 1 June 2006.

· CZ subsequently claimed from Ms Fischer-Lintjens the health care costs of more than EUR 11 000 which it had reimbursed to the German institution. According to the CVZ, in accordance with Article 5(5) of the Zvw, health care insurance can take effect retroactively only if it is concluded within four months from the coming into being of the insurance obligation. Ms Fischer-Lintjens therefore had to pay the health care costs reimbursed to the German institution for the period during which she had not been covered by health care insurance, namely between June 2006 and 1 July 2010, from which latter date she had Netherlands health care insurance.

· On 7 December 2010 Ms Fischer-Lintjens made a complaint to the CVZ against the withdrawal decision.

· Since 15 March 2011 the SVB has been the competent body for granting exemptions from the insurance obligation under the AWBZ and issuing certificates of non-insurance. Certificates issued before that date by the CVZ are deemed to have been issued by the SVB.

· By decision of 21 April 2011, the SVB ruled that Ms Fischer-Lintjens’s complaint against the withdrawal decision was unfounded. Her appeal against the SVB’s decision was allowed by judgment of the Rechtbank Roermond (District Court, Roermond) of 17 January 2012. According to that court, the certificate of non‑insurance which she had received was intended to produce legal effects which could not be cancelled by the withdrawal of the certificate.

· The SVB appealed against that judgment to the Centrale Raad van Beroep (Higher Social Security Court), arguing that a certificate of non-insurance was of a purely declaratory nature, like an E 121 form. In its view, no legal consequences may be derived from the national rules in derogation from the consequences of the application of Regulation No 1408/71.

· The Centrale Raad van Beroep considers that the SVB had power to withdraw the certificate of non-insurance with retroactive effect, but that in withdrawing it the SVB had not taken sufficient account of Ms Fischer-Lintjens’s interests. That court considers that it follows in particular from the principle of legal certainty that actual competence to award pensions and bear the cost of benefits in kind does not arise until the date of the decision to award the pension sought, by which it is established that the person concerned is indeed entitled to it. For that reason, it raises the question of the determination of the date on which the pension at issue in the main proceedings actually became ‘payable’ within the meaning of Article 27 of Regulation No 1408/71 to Ms Fischer-Lintjens, since, in its opinion, if that article is applicable retroactively, this will in principle give rise to various retroactive legal consequences, including, in the present case, the obligation to hold Netherlands health care insurance.

· In those circumstances the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

1. Must the term “payable”, as used in Article 27 et seq. of Regulation (EEC) No 1408/71, be interpreted as meaning that the decisive factor for the purpose of determining the point in time from which a pension is payable is the date of the decision to make an award, after which the pension is paid, or the commencement date of the pension awarded with retroactive effect?

2. If the term “payable” refers to the commencement date of the pension awarded with retroactive effect:

The CJEU ruled as follows:

Article 27 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, in conjunction with section R, point 1(a) and (b), of Annex VI to Regulation No 1408/71, must be interpreted as meaning that the pension of a person entitled must, in circumstances such as those at issue in the main proceedings, be regarded as payable from the commencement of the period in respect of which that pension was actually paid to that person, whatever the date on which the entitlement to that pension was formally confirmed, including, if appropriate, where the period commences before the date of the decision awarding the pension.

Articles 27 and 84a of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, in conjunction with section R, point 1(a) and (b) of Annex VI to that regulation, must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, legislation of a Member State which does not allow the recipient of a pension awarded by that Member State with retroactive effect of one year to become affiliated to compulsory health care insurance with the same retroactive effect, and which has the effect of depriving that person of all social security cover without all the relevant circumstances, in particular those relating to that person’s personal situation, being taken into account.

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