This request for a preliminary ruling concerns the interpretation of Articles 1(r) and 46 of Regulation 1408/71. The request was made in proceedings between Mr Mulders and the Rijksdienst voor Pensionen (National Belgian Pensions Office) (‘the RVP’) concerning the failure to take into account, for the purpose of calculating his retirement pension in Belgium, a period of incapacity for work in respect of which he received sickness insurance benefit in another Member State, namely the Netherlands.
Mr Mulders, a Belgian national resident in Belgium, worked in that Member State. As a result of an accident at work, a permanent invalidity rate of 10% was applied to Mr Mulders. The Belgian Fund for Accidents at Work awarded him a benefit on the basis of his permanent invalidity. Afterwards, Mr Mulders was employed as a frontier worker in Maastricht (the Netherlands). After a certain amount of time, Mr Mulders was also declared incapable of work in the Netherlands and therefore received, by way of sickness insurance benefit, the benefit provided for by the Netherlands WAO, equivalent to a rate of incapacity for work of 80% to 100% (‘the WAO benefit’). Contributions were deducted from that benefit, including pension contributions paid under the Netherlands AOW into the Netherlands social security scheme. Mr Mulders applied for his pension, both in the Netherlands, to the Sociale Verzekeringsbank van Amstelveen (Social Insurance Office, Amstelveen) (‘the Netherlands SV’) and in Belgium, to the RVP.
The RVP granted Mr Mulders a retirement pension. However, for the purpose of calculating the pension, account was not taken of the period from 10 February 1982, the date on which he was recognized as being incapable of work in the Netherlands, to 25 October 1997.
The RVP based its decision on the statement provided by the Netherlands SV. It took the view that, during the period referred to above, Mr Mulders had not been insured under the Netherlands AOW because, at the same time as he had been in receipt of the WAO benefit, he had also been in receipt of a benefit in Belgium on the basis of accident at-work insurance. Such benefits could not be combined under Netherlands legislation and precluded any entitlement to the insurance cover provided by the Netherlands AOW.
The case was eventually brought before the Labour Court of Antwerp, which stayed proceedings and referred a question for preliminary ruling to the ECJ. By its question, the referring court asks, in essence, whether Articles 1(r) and 46 of Regulation 1408/71 are to be interpreted, for the purpose of calculating a retirement pension in one Member State, as precluding the legislation of another Member State under which a period of incapacity for work during which sickness insurance benefit – from which contributions were deducted by way of old age insurance – was paid in that other Member State to a migrant worker is not regarded as a ‘period of insurance’ within the meaning of those provisions, on the ground that the person concerned is not resident in the latter State and/or was in receipt of a similar benefit under the legislation of the first Member State, which could not be cumulated with the sickness insurance benefit.
It is true that, at the time when Mr Mulders definitively ceased working, Article 13(2)(f) of Regulation 1408/71, which determines inter alia the legislation applicable to persons who have definitively ceased all activity, was not yet in force. However, before, the Court had already held that even though Article 13(2)(a) of Regulation 1408/71 did not expressly refer to the case of a worker who was not employed when he applied for sickness insurance benefit, that provision referred, where necessary, to the legislation of the State in whose territory the worker was last employed. It follows that a person such as Mr Mulders, who, definitively ceased work and did not take up employment subsequently, falls within the scope of the provisions of Article 13(2)(a) of Regulation 1408/71, which, as the last employment position held by Mr Mulders was in the Netherlands, designate Netherlands legislation as the legislation applicable.
It should also be recalled that Article 1(r) of Regulation 1408/71 provides that the conditions governing the constitution of periods of insurance are defined exclusively by the legislation of the Member State under which the periods in question were completed. However, it is established case-law that, in establishing those conditions, Member States are required to comply with European Union law. It follows that the conditions to which Member States subject the constitution of periods of insurance may not in any case have the effect of excluding from the scope of national legislation persons to whom that legislation applies under Regulation No 1408/71.
At the date on which the person concerned ceased to work, Article 13(2)(a) of Regulation 1408/71 imposed the rule that such a person continued to be subject to the legislation of the Member State in which he was last employed, even though he resided in the territory of another Member State. That provision would not be complied with if the residence condition laid down by the legislation of the Member State on whose territory the person concerned ceased all employment for affiliation to the retirement pension insurance scheme provided for by that legislation could be relied on against the persons referred to in Article 13(2)(a) of Regulation 1408/71. With regard to those persons, the effect of that provision is to replace the residence condition with a condition based on employment in the territory of the Member State concerned.
As the Court has repeatedly held, the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, migrant workers were to lose the social security advantages afforded them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid. It is clear that those requirements are not met if, for the purpose of calculating the retirement pension of a migrant worker, the legislation of a Member State precludes as a period of insurance an entire period during which contributions were paid by the worker by way of old age insurance, where it is common ground that account would have been taken of that period if the person concerned had resided in that Member State.