(February 12, 2015)

On February 12, 2015 the European Court of Justice (CJEU) ruled in Cases C-114/13; Theodora Hendrika Bouman versus Rijksdienst voor Pensioenen (ECLI:EU:C:2015:81).

Is the part of the [benefit under the AOW] which is paid to a Netherlands resident and which is based on an insurance period during which that Netherlands resident, simply by making an application, may refrain from joining the Netherlands scheme and thus from paying the premium, and in fact did so for a limited period, to be regarded as a benefit which is awarded on the basis of a voluntary or optional continued insurance within the meaning of Article 46a(3)(c) of Regulation No 1408/71, so that no account may be taken of it when applying the provision against overlapping as laid down in Article 52(1)(1) of [the Royal Decree of 21 December 1967 laying down general rules concerning retirement and survivors’ pensions for employed persons]?

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

·       Mrs Bouman, who was born on 2 June 1942, is a Netherlands citizen who lived in the Netherlands until 23 June 1957 and who, after that date, lived in Belgium until 3 February 1974.

·       Mrs Bouman was married to a Belgian national who died on 3 August 1968, and since 1 September 1969 she has been receiving a Belgian survivor’s pension granted to her on the basis of a decision of the Rijksdienst of 10 July 1969.

·       Since that time, Mrs Bouman has never earned income of her own from any professional activity.

·       After her return to the Netherlands, Mrs Bouman paid contributions in order to build up a Netherlands old age pension under the AOW (‘AOW pension’).

·       In respect of the last four years prior to retirement age, that is, from 1 August 2003, Mrs Bouman requested and obtained, on the basis of Article 22 of the Dutch Decree, an exemption from affiliation under the AOW. She therefore ceased contributing to the Netherlands social security scheme, with the consequence that her pension contributions record under the AOW was not complete.

·       Since 1 June 2007, having reached retirement age, Mrs Bouman has been receiving a partial pension under the AOW.

·       By decision of 4 February 2009, the Rijksdienst informed Mrs Bouman of its decision to deduct, with effect from 1 June 2007, the AOW pension from her Belgian survivor’s pension, and to bring proceedings for recovery of the sum overpaid in respect of the latter pension amounting to EUR 2 271.81.

·       On 4 May 2009, Mrs Bouman lodged an appeal against that decision with the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp).

·       The Sociale Verzekeringsbank (national Social Insurance Office, ‘SVB’) was asked, as the competent authority, to determine whether the benefit Mrs Bouman receives is awarded on the basis of voluntary insurance or optional continued insurance.

·       By letters of 31 July 2009 and 15 June 2010, the SVB indicated that insurance under the AOW is, in principle, a compulsory insurance and that voluntary or optional continued insurance can be said to exist in two situations only. First, when, within one year after the commencement of the first compulsory insurance, there is a request to regularise historical uninsured periods or secondly, when, within one year after the end of the compulsory insurance, there is a request to voluntarily continue the insurance. In both cases, it is necessary to make a request to the SVB and, according to the SVB, there is no doubt that Mrs Bouman never made use of the option of voluntary or optional continued insurance.

·       The SVB concluded that Mrs Bouman’s AOW pension did not result from any periods of voluntary insurance, but had been built up entirely from periods of compulsory insurance.

·       The arbeidsrechtbank te Antwerpen accordingly dismissed the appeal on the merits by judgment of 6 May 2010, and Mrs Bouman lodged an appeal against that judgment before the arbeidshof te Antwerpen (Higher Labour Court, Antwerp).

·       The arbeidshof te Antwerpen takes the view, on the basis of the judgment in Knoch (C‑102/91, EU:C:1992:303, paragraph 53), that it is responsible for verifying the SVB’s statement. It has doubts as to whether the SVB’s position is consistent with Article 46a(3)(c) of Regulation No 1408/71 and it takes the view that it has jurisdiction to deal with that question in the context of the main proceedings.

·       In those circumstances, the arbeidshof te Antwerpen decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is the part of the [benefit under the AOW] which is paid to a Netherlands resident and which is based on an insurance period during which that Netherlands resident, simply by making an application, may refrain from joining the Netherlands scheme and thus from paying the premium, and in fact did so for a limited period, to be regarded as a benefit which is awarded on the basis of a voluntary or optional continued insurance within the meaning of Article 46a(3)(c) of Regulation No 1408/71, so that no account may be taken of it when applying the provision against overlapping as laid down in Article 52(1)(1) of [the Royal Decree of 21 December 1967 laying down general rules concerning retirement and survivors’ pensions for employed persons]?’

The CJEU ruled as follows:

Article 46a(3)(c) 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, must be interpreted as encompassing the part of the benefit resulting from a period of insurance during which the person concerned had the right to obtain an exemption from affiliation to the compulsory insurance scheme, in a situation where such affiliation, during the period in question, affects the extent of the social security benefit.

For further information click here to be forwarded to the text of the ruling as published on the website of the Court of Justice, which will open in a new window.

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