Mr van der Helder is a retired Netherlands national who has resided in France. Over the course of his career he resided and worked in a number of Member States. Mr van der Helder has received a pension from the Netherlands under the AOW. That pension is based on 43 completed years of insurance in that Member State. Those rights were acquired partly on the basis of residence, and partly on voluntary insurance. In addition to that pension, Mr van der Helder also receives a statutory old-age pension from the Republic of Finland, where he was insured from 1980 to 1987. Furthermore, he also receives a statutory old-age pension from the United Kingdom of Great Britain and Northern Ireland. Mr Farrington is a retired British national who has resided in Spain since May 2004. Over the course of his career he resided and worked in a number of Member States, namely in the United Kingdom and in the Netherlands. As of April 2006, he has received an AOW pension, in accordance with Netherlands law. That pension is based on 35 completed years of insurance in that Member State. In addition to that pension, Mr Farrington also receives a statutory old-age pension from the United Kingdom, where he worked from 1957 to 1972.

Both individuals contested the lawfulness of decisions of the Netherlands authorities to make deductions, from pensions provided to both who receive pensions in accordance with the legislation of several Member States other than the French Republic and the Kingdom of Spain where they are resident, in respect of the sickness benefits in kind provided, under Article 28 of Regulation 1408/71, in their Member State of residence in which they are not entitled to those benefits. Those decisions follow the entry into force in the Netherlands, on 1 January 2006, of the new compulsory sickness insurance scheme put in place by the ZVW which, in replacing the system planned prior to that date by the ZFW for only salaried workers with incomes below certain thresholds, now applies to all persons resident or working in that Member State.

In that dispute, the Dutch referring court decided to stay the proceedings and ask the ECJ whether Article 28(2)(b) of Regulation 1408/71 must be interpreted as meaning that the ‘legislation’ to which the pensioner has been subject for the longest period of time, referred to in the provision, is that relating to sickness and maternity benefits, that relating to pensions, or all legislation relating to the branches of social security listed in Article 4 of that regulation which were applicable.

The Court notes, in this regard, that Article 28 of Regulation 1408/71 lays down a ‘conflict rule’ enabling the determination, particularly in relation to pensioners entitled to draw pensions in accordance with the legislation of several Member States and who reside in another Member State in which they are not entitled to sickness and maternity benefits, of the institution which is responsible for payment of those benefits and which legislation is.

In those circumstances, in determining the scope of the concept of ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purposes of Article 28(2)(b) of Regulation 1408/71, it is necessary to refer to the context and aim of the provision itself.

Under the system thus established by Articles 27, 28 and 28a, the institution which has to bear the cost of the benefits in kind in respect of sickness and maternity will always be an institution of a Member State competent in respect of pensions, since the pensioner would have a right to those benefits under the legislation of that Member State if he resided in its territory. In that regard, Article 28a of Regulation 1408/71, which concerns the situation in which the State of residence of the pensioner does not make entitlement to benefits in kind subject to conditions of insurance or employment, also provides explicitly that ‘the cost of [those] benefits shall be borne by the institution of one of the Member States competent in respect of pensions’, in order that their cost should not be borne by the Member State in which the person concerned resides, merely by virtue of the fact that he resides there.

The result is that the system put in place by Articles 27, 28 and 28a of Regulation 1408/71 establishes a connection between the jurisdiction to provide pensions and the obligation to bear the cost of benefits in kind in respect of sickness and maternity, since that obligation is incidental to actual jurisdiction in respect of pensions.

Thus, the ‘legislation’ to which the pensioner has been subject for the longest period of time, referred to in Article 28(2)(b) of Regulation 1408/71, is that relating to pensions. Consequently, where the persons concerned are, as in the case in the main proceedings, entitled to draw pensions in accordance with the legislation of several Member States and they reside in another Member State in which they have no entitlement to benefits in kind in respect of sickness and maternity, the responsibility for payment of those benefits falls, in accordance with that provision, on the Member State with jurisdiction in respect of pensions to whose legislation those persons have been subject for the longest period of time.