(February 14, 2015) 

On February 12, 2015 the opinion of Advocate General P. Mengozzi in Case C-543/13, Raad van bestuur van de Sociale verzekeringsbank versus E. Fischer-Lintjens (ECLI:EU:C:2015:96) was published on the website of the European Court of Justice (CJEU).

1.     Must the term “payable” [pensions], as used in Article 27 et seq. of Regulation 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” [pensions] 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?’

·       Mrs Fischer-Lintjens was born on 1 December 1934. She lived in the Netherlands until 1 September 1970. She then lived in Germany until 1 May 2006. Since then, she has again been living in the Netherlands.

·       Since October 2004, Mrs Fischer-Lintjens has been in receipt of a widow’s pension awarded by the Federal Republic of Germany. In 2006, having left Germany to settle in the Netherlands, she registered with the Netherlands health care insurer (‘CZ’) by means of an E 121 form and, from 1 June 2006, was able to claim benefits under Article 28 of Regulation No 1408/71 at the expense of the Federal Republic of Germany. Mrs Fischer-Lintjens also paid German health care insurance contributions in Germany.

·       On 20 October 2006, Mrs Fischer-Lintjens obtained from the then competent authority, the College voor zorgverzekeringen (Health Care Insurance Board; ‘Cvz’), the Article 21 declaration that was intended to prove to the Netherlands authority responsible for levying contributions that no contribution was payable in the Netherlands. That declaration made it clear that Mrs Fischer-Lintjens was not insured under the General Law on Exceptional Medical Expenses (Algemene Wet Bijzondere Ziektekosten; ‘AWBZ’). It indicated that the statement contained in it was valid, in the absence of any changes to her circumstances, for the period from 1 June 2006 to 31 December 2010.

·       Although Mrs Fischer-Lintjens had reached the age of 65 and had thus become entitled to a pension in the Netherlands as from 1 December 1999, in accordance with the General Law on Old-age Pensions (Algemene Ouderdomswet; ‘AOW’), she did not apply for that pension until May 2007.

·       By decision of 8 November 2007, as amended on 24 April 2008, the SVB awarded Mrs Fischer-Lintjens a pension retroactive to one year prior to the date of the filing of the application, that is to say to 1 May 2006.

·       However, Mrs Fischer-Lintjens did not notify the CZ, the Cvz or the German health insurance institution (‘DAK’) of the changes in her benefit situation until October 2010.

·       Indeed, it was not until 21 October 2010 that Mrs Fischer-Lintjens informed the Cvz, in her application to extend the Article 21 declaration, that she had been receiving a pension under the AOW since 1 May 2006. As a result, by decision of 2 November 2010, the Cvz informed Mrs Fischer-Lintjens that she was subject to compulsory insurance under the AWBZ and the Law on health care insurance (Zorgverzekeringswet; ‘the Zvw’) and that she was therefore required to pay contributions in the Netherlands. That decision was based on the fact that Mrs Fischer-Lintjens was no longer in a situation enabling her to obtain the Article 21 declaration, which was therefore retroactively withdrawn from her.

·       The DAK subsequently refunded the health care insurance contributions which Mrs Fischer-Lintjens had paid in Germany since 1 June 2006. The CZ then recovered from Mrs Fischer-Lintjens the health care costs reimbursed to Germany, in an amount in excess of EUR 11 000.

·       Moreover, according to the Cvz, Mrs Fischer-Lintjens was subject to compulsory insurance under the AWBZ and the Zvw, effective retroactively. However, since Article 5(5) of the Zvw provides that health care insurance may have retroactive effect reaching back only to four months at most from when the insurance obligation arose, Mrs Fischer-Lintjens was therefore required to pay herself the health care costs reimbursed to the Federal Republic of Germany for the period not covered by health care insurance. Since 1 July 2010, however, she has been covered by Netherlands health care insurance.

·       Following the rejection of her complaint, Mrs Fischer-Lintjens successfully contested the Cvz’s decision before the Rechtbank Roermond (Roermond District Court). According to that court, the Article 21 declaration which Mrs Fischer-Lintjens received was intended to produce legal effects that could not be cancelled by the withdrawal of the declaration.

·       The SVB, the body to which the Cvz’s responsibilities have since been transferred, lodged an appeal against that judgment before the referring court, claiming that the Article 21 declaration was an act of a purely declaratory nature, like the E 121 form.

·       The referring court considers that the SVB had the power to withdraw the Article 21 declaration with retroactive effect, but that, in so doing, the SVB had not taken adequate account of Mrs Fischer-Lintjens’ interests. That court is of the view that it may follow in particular from the principle of legal certainty that the actual competence to award pensions and bear the cost of benefits in kind does not arise until the date of the decision awarding a pension whereby it is established that the person concerned is indeed entitled to the pension claimed. For that reason, the referring court raises the question of when the pension at issue in the main proceedings actually became ‘payable’, within the meaning of Article 27 of Regulation No 1408/71, to Mrs Fischer-Lintjens, since, in its opinion, if that article is applicable retroactively, this will, in principle, give rise to a number of similarly retroactive legal consequences, including, in the present case, the obligation to hold Netherlands health care insurance.

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

‘(1)   Must the term “payable” [pensions], as used in Article 27 et seq. of Regulation 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” [pensions] 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?’ 

In the opinion Advocate General Mengozzi proposes that the Court gives the following reply to the question referred for a preliminary ruling by the Centrale Raad van Beroep:

1.     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 must be interpreted as meaning that the term ‘payable’ includes the period during which a person is entitled to a pension, irrespective of when that entitlement was formally established, provided that the pension in question is actually paid for that period, including retroactively.

2.     A Member State which awards to an insured person falling within the scope of Article 27 of, and Annex VI, Section R, point 1(a)(i) and (b), to, Regulation No 1408/71 a pension that takes effect retroactively must allow the insured person to take out similarly retroactive compulsory health care insurance in order thus to reflect the objective situation arising from the application of those provisions of Regulation No 1408/71.

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