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ConclusionsC05432013IIIENL_Cnc_Mess_Fr.xmlTRA-DT-FR-CONCL-C-0543-2013-201500431-01_00.xmlCNCRPLitige0DEFÉDITION PROVISOIRE DU 11/12/20141Texte pour publication00-0Document101P1C:\Users\LASSAMA\AppData\Local\Temp\canevas\Litige.xml1/17/2015False0CNC§83;pos=35955:lng=EN^CONVERSION^blackma@TRA-DOC-EN-CONCL-C-0543-2013-201500431-06_90Doc2XML_2003_TRAD_SUIVI2C:\Documents and Settings\gti_prod\Application Data\Doc2XML\PR_Doc2XML_2003_TRAD_SUIVI2.xmlO:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_trad\In\UNCLASSIFIEDNormalIRECFalseFalse()Doc2XML_2003_PC_TRAD SV2_PUBC:\Documents and Settings\gti_prod\Application Data\Doc2XML\PR_Doc2XML_2003_SV2_PUB.xmlP:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_pub\In\OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 12 February 2015 (2)

Case C‑543/13

Raad van bestuur van de Sociale verzekeringsbank

E. Fischer-Lintjens

(Request for a preliminary ruling from the Centrale Raad van Beroep (Netherlands))

(Reference for a preliminary ruling — Sickness insurance — Regulation (EEC) No 1408/71 — Article 27 — Concept of ‘pensions payable under the legislation of two or more Member States’ — Retroactive award of a pension in the Member State of residence — Retroactivity of health care insurance)

I – Introduction

1. This reference for a preliminary ruling from the Central Raad van Beroep (Higher Social Security Court) (Netherlands) relates in essence to the interpretation of 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, (3) as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004 (4) and by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (5) (‘Regulation No 1408/71’).

2. More specifically, the referring court asks whether the concept of pensions ‘payable’ as provided for in Article 27 of Regulation No 1408/71 can be interpreted as meaning that the decisive factor for the purposes of establishing the point in time from which a pension is ‘payable’ is the date of the decision to make an award after which the pension was paid, or the commencement date of the pension awarded with retroactive effect. In the event that the second option envisaged in its first question is selected, the referring court wishes to ascertain whether that interpretation is reconcilable with the fact that a person in receipt of a pension who falls within the scope of Article 27 of Regulation No 1408/71 cannot, under Netherlands legislation, take out similarly retroactive health care insurance.

3. These questions have arisen in the course of proceedings between the Raad van Bestuur van de Sociale Verzekeringsbank (Board of Management of the Social Insurance Bank, ‘SVB’) and Mrs Fischer-Lintjens concerning the withdrawal of a declaration, known as an ‘Article 21 declaration’, (6) which had confirmed that Mrs Fischer-Lintjens was exempt from the obligation to hold Netherlands health care insurance, such insurance, under the legislation at issue in the main proceedings, being a mandatory condition of entitlement to health care benefits in the Netherlands at the expense of that Member State.

4. 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.

5. 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 (7) 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.

6. On 20 October 2006, Mrs Fischer-Lintjens obtained from the then competent authority, the College voor zorgverzekeringen (Health Care Insurance Board; ‘Cvz’), (8) 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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?’

17. Written observations on those questions have been lodged by the SVB, the Netherlands and German Governments and the European Commission.

II – Analysis

A – The first question referred for a preliminary ruling

18. By its first question, the referring court asks the Court, in essence, to indicate the point in time from which a pension awarded by an insured person’s Member State of residence must be regarded as being ‘payable’ within the meaning of Article 27 of Regulation No 1408/71 for the purposes of determining, by extension, the point in time from which the competence to pay him health care benefits is transferred to that same Member State of residence, in the light of the particular circumstances of the case in the main proceedings.

19. In this regard, it is particularly important to point out that it is common ground that, until 30 April 2006, Mrs Fischer-Lintjens, as the recipient of a widow’s pension awarded by the Federal Republic of Germany who was resident in that Member State, was within the competence of the authorities of that Member State.

20. The competence of the German authorities in respect of pensions and health care benefits was not called into question by Mrs Fischer-Lintjens’ return to the Netherlands and her decision to live there from 1 May 2006.

21. After all, under the conflict rule set out in Article 28(1) of Regulation No 1408/71, a pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislation of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides must nevertheless receive such benefits in so far as he would be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of such State.

22. It was on that basis, in the case in issue, that, in October 2006, Mrs Fischer-Lintjens received an Article 21 declaration from the Cvz confirming that, on account of her German pension, no health care insurance contributions were payable in the Netherlands, and, furthermore, that the health care benefits which she obtained in that Member State were provided on behalf of the competent institution of the Member State responsible for paying the pension towards which Mrs Fischer-Lintjens was still contributing, namely the Federal Republic of Germany.

23. However, as soon as Mrs Fischer-Lintjens received a Netherlands pension, following her application of May 2007, her situation moved from the scope of Article 28(1) of Regulation No 1408/71 to that of Article 27 of that regulation.

24. According to the latter provision, a pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member State in whose territory he resides, and who is entitled to benefits under the legislation of the latter Member State, taking account where appropriate of the provisions of Article 18 of, and Annex VI to, Regulation No 1408/71, must receive such benefits from the institution of the place of residence and at the expense of that institution as though the person concerned were a pensioner whose pension was payable solely under the legislation of the latter Member State.

25. Thus, as the Court has already held, the system put in place by Articles 27 and 28 of Regulation No 1408/71 establishes a connection between the competence to provide pensions and the obligation to bear the cost of benefits in kind which leads to the conclusion that that obligation is incidental to an actual competence in respect of pensions. (9)

26. The referring court none the less asks at what point in time Mrs Fischer-Lintjens’ Netherlands pension must be regarded as being ‘payable’ within the meaning of Article 27 of Regulation No 1408/71 for the purpose of establishing when competence is transferred to the Kingdom of the Netherlands, which has been Mrs Fischer-Lintjens’ Member State of residence since 1 May 2006.

27. The reason for that question lies in the particular circumstances of the case in the main proceedings, in so far as there is a time lag between, on the one hand, the point at which the SVB’s decision establishing the pension entitlement was taken and the date from which the first pension payment was made, namely 8 November 2007, and, on the other hand, the point at which that decision takes effect, that is to say, retroactively, 1 May 2006, in other words, one year before Mrs Fischer-Lintjens applied to the SVB to be awarded a pension in the Netherlands.

28. The parties concerned propose that that question be answered unequivocally to the effect that the decisive factor for the purposes of establishing the point in time from which a pension is ‘payable’ within the meaning of Article 27 of Regulation No 1408/71 is the commencement date of the retroactively awarded pension, in this instance, 1 May 2006. Relying on the judgment in Rundgren (C‑389/99, EU:C:2001:264), those parties maintain, in essence, that the fact that the pension is awarded retroactively has no bearing on the actual entitlement to that pension.

29. I am able to endorse that position in so far as there is no doubt — a point which it is for the referring court to verify — that the pension in question has actually been paid for the period from the start of which it takes effect, that is to say, from 1 May 2006.

30. A number of arguments based on the case-law of the Court and the protection of the rights of the persons concerned militate in favour of such a solution.

31. Taking as its basis a schematic interpretation of Regulation No 1408/71, the Court stated in the judgment in Rundgren (C‑389/99, EU:C:2001:264) that, in the case in particular of Article 27 of Regulation No 1408/71, the fact, as I have already mentioned, that bearing the cost of benefits in kind is incidental to actual competence in respect of pensions means that the cost of benefits in kind cannot be borne by a Member State which has only a hypothetical competence in respect of pensions. It follows, according to the Court, that, when it refers to a pension payable, Article 27, like Articles 28 and 28a of Regulation No 1408/71, is concerned with a pension that is ‘actually paid to the person concerned’. (10)

32. The context in which the Court came to clarify the scope of Articles 27, 28 and 28a of Regulation No 1408/71 along the lines just indicated was one in which the Member State of residence of the recipient of an old-age pension paid by another Member State none the less sought to recover from that person the payment of old-age pension and social security contributions on the sole basis of his residence. The Member State of residence, the Republic of Finland in that case, considered that, for the purposes of exemption from the requirement to pay contributions, it was not sufficient for the person concerned to produce a certificate stating that he had neither applied for nor obtained a pension in that Member State. The Finnish authorities argued that the person concerned would also have had to prove that he had no (theoretical) entitlement to a pension in Finland. The Court rejected that argument by reference to the need for the person concerned actually to be paid a pension in order for the Member State to be able to recover the payment of social security contributions.

33. In this instance, there is no doubt that the pension received by Mrs Fischer-Lintjens in the Netherlands was actually paid to her. There is therefore no need in the present case to address once again, as in Rundgren, the general distinction that exists between a theoretical entitlement to a pension and the realisation of that entitlement through the actual payment of that pension. In other words, the judgment in Rundgren (C‑389/99, EU:C:2001:264) is a good starting point for the line of reasoning that must be applied in order to begin to answer the first question referred by the national court but it is by no means enough to provide a full answer.

34. In short, I consider that the first question calls for a determination of whether Article 27 of Regulation No 1408/71 precludes a Member State from being able to decide that it is possible for a pension to be ‘actually paid’ for a period prior to the date on which the competent institutions of the Member State formally recognised the entitlement to a pension.

35. It is important to recall that it was on the basis of Article 16(2) of the AOW that the SVB made the effects of its decision of 8 November 2007 recognising Mrs Fischer-Lintjens’ pension entitlement in the Netherlands retroactive for a period reaching back one year from the filing of her application.

36. At first sight, as the pension was not ‘actually paid’ until after the decision of 8 November 2007, it might seem that the pension was therefore not ‘payable’ within the meaning of Article 27 of Regulation No 1408/71 until after that decision.

37. None the less, I consider such an interpretation to be untenable. The judgment in Rundgren (C‑389/99, EU:C:2001:264) essentially said that a pension is ‘payable’ only where it was first of all awarded by the competent institution of a Member State, following, where appropriate, an application to that effect, and was then actually paid by that institution. This does not mean that there is necessarily any correspondence between the point in time when the pension is awarded and the point in time when it is payable in the sense of being ‘actually paid’. Where a pension is awarded, it may be awarded retroactively. In that case, the competent institution recognises that the pension was payable before its decision but that, for material reasons relating in particular, as in this instance, to the filing and processing of the insured person’s application, it was not paid until later. Since, however, the actual payment covers a particular period, that is to say, the period from the point in time when the pension is awarded, that pension should, in my opinion, be regarded as being ‘payable’ throughout that period.

38. As the German Government has very pertinently pointed out, although, in the case in the main proceedings, the point in time taken into account was the point at which the decision of 8 November 2007 was adopted, the temporal applicability of a Member State’s competence in respect of pensions depends on the speed with which applications made to the national authorities are processed.

39. As the Court has repeatedly held, the application of the system of conflict rules established by Regulation No 1408/71 depends solely on the objective situation of the person concerned. (11)

40. Just as that regulation does not allow an insured person to withdraw from or waive the benefit of the mechanism introduced by Regulation No 1408/71, in particular by Article 27 thereof, (12) so it does not authorise the Member States, in the situation referred to in that provision, to place at the discretion of their administrative authorities the point in time when a transfer of competence between two Member States must be deemed to have taken place.

41. Indeed, the very purpose of the conflict rules contained in Regulation No 1408/71 is to ensure that all insured persons falling within its scope enjoy continuous cover and that discretionary choices are not left to the assessment of individuals or the competent authorities of the Member States. (13)

42. Moreover, accepting the proposition that a pension entitlement is retroactive and payable for the period prior to the adoption of the decision formally establishing the existence of that entitlement also ensures respect for the rights of insured persons and the continuity of their insurance cover, in such a way as to render the transfer of competence in respect of pensions between two Member States neutral from the point of view of the receipt of social security benefits.

43. I would therefore ask the Court to interpret Article 27 of Regulation No 1408/71 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 that pension is actually paid for the period in question, including retroactively.

44. If the Court adopts that interpretation, the second question referred by the national court will need to be examined and answered.

B – The second question referred for a preliminary ruling

45. By its second question, which lies at the heart of the case in the main proceedings, the referring court asks about the compatibility with EU law of national legislation, such as Article 5(5) of the Zvw, which provides that health care insurance may have retroactive effect reaching back only to four months at most from when the insurance obligation arose. There is therefore, in the referring court’s view, a ‘hiatus’ between the transfer of competence to the Kingdom of the Netherlands under Article 27 of Regulation No 1408/71 and the (compulsory) affiliation to a health insurance scheme in that Member State.

46. Whilst the German Government submits that limiting the retroactive effect of health care insurance to four months runs counter to the objective of coordinating the social security systems of the Member States, the SVB, the Netherlands Government and the Commission consider, in essence, that the ‘hiatus’ mentioned by the referring court is the consequence of Mrs Fischer-Lintjens’ failure to discharge her obligation to keep the competent authorities informed, even though she was required to take out health care insurance in the Netherlands from 1 May 2006 pursuant to Annex VI, Section R, point 1(a), to Regulation No 1408/71 and the Netherlands legislation.

47. Those interested parties take the view that Mrs Fischer-Lintjens cannot rely as against that line of argument on the allegation that the continued validity of the Article 21 declaration served to protect Mrs Fischer-Lintjens’ legitimate expectations, since that document is purely declaratory and was issued on the basis of inaccurate information. In any event, the SVB and the Netherlands Government state that EU law does not preclude an extensive restriction of the retroactive effectiveness of health care insurance. In the Netherlands, an entitlement to benefits exists only if the insured person has taken out health care insurance, which, in that Member State, is not public in nature but an indemnity insurance scheme under civil law which is intended to cover risks arising from the materialisation of future events and must be taken out with a private company whose capacity to conclude contracts retroactively is limited in the interests of preserving the principle of solidarity, which justifies the potentially restrictive nature of that national measure.

48. I am not entirely convinced by the considerations put forward by those three interested parties.

49. I would certainly concede that Article 27 of Regulation No 1408/71 recalls the right of a pensioner who is entitled to draw pensions under the legislation of two or more Member States, including that of the Member State in whose territory he resides, to receive benefits under the legislation of the latter State, taking into account, where appropriate, Annex VI to that regulation. It is true that point 1, entitled ‘Health care insurance’, of Section R of that annex, provides at point (a)(i) that ‘[a]s regards entitlement to benefits in kind under Netherlands legislation, persons entitled to [such] benefits … shall mean … persons who, under Article 2 of the [Zvw], are obliged to take out insurance under a health care insurer’, while point 1(b) states that ‘the persons referred to in point (a)(i) must, in accordance with the provisions of the [Zvw], take out insurance with a health care insurer …’.

50. There is therefore no doubt that, in order to receive benefits in kind provided by the Kingdom of the Netherlands, Mrs Fischer-Lintjens’ Member State of residence since 1 May 2006, Mrs Fischer-Lintjens was required to become affiliated to a health care insurer pursuant to point 1(a)(i) and (b) of Section R of Annex VI to Regulation No 1408/71 and the provisions of the Zvw.

51. I also concede that, in order to rebut such a finding, an insured person such as Mrs Fischer-Lintjens cannot rely on the legitimate expectation as to the ongoing validity of a certificate such as the Article 21 declaration issued by the Cvz in October 2006, which confirmed, at that time, that Mrs Fischer-Lintjens was exempt from her obligation to become affiliated to a Netherlands health care insurer and to pay social security contributions in the Netherlands. After all, as the SVB and the Commission have argued, such a certificate, being simply a translation of the E 121 form, is purely declaratory, as the Court has specifically held in connection with that form. (14) Moreover, it is clear from the information supplied by the referring court that that certificate was issued up to 31 December 2010 only ‘in the absence of any change in circumstances’.

52. However, I cannot subscribe to the view taken by those interested parties to the effect that a situation such as that in the case in the main proceedings is ultimately no more than the consequence of the insured person’s failure to notify the necessary information on her personal situation to the competent bodies and is not the result of the limits attached by the Netherlands legislation to the retroactive effect of the health care insurance which a person entitled to a pension paid in the Kingdom of the Netherlands and living in that Member State is obliged to take out in order to receive benefits in kind provided by the Netherlands.

53. After all, as the referring court briefly points out, a person to whom the Netherlands authorities have granted the payment of a pension with retroactive effect reaching back to more than four months from the date of the filing of the corresponding application will always be unable to obtain health care insurance in the Netherlands with retroactive effect equivalent to more than four months, particularly if he has previously received health care at the expense of another Member State.

54. Thus, if Mrs Fischer-Lintjens had informed the competent bodies on 8 November 2007, the date on which the SVB adopted its decision establishing her entitlement to a pension in the Netherlands with retroactive effect to May 2006, she could not have become affiliated to a health insurance scheme until July 2007 at the earliest, pursuant to Article 5(5) of the Zvw, which limits the retroactivity of health care insurance to a maximum of four months.

55. Leaving aside the question of whether the information notified by Mrs Fischer-Lintjens was late, to which I shall turn below, the fact that a resident, who is entitled to a pension paid by the Kingdom of the Netherlands and is required, pursuant to Article 27 of Regulation No 1408/71 in conjunction with point 1(a)(i) and (b) of Section R of Annex VI thereto, to become affiliated to an insurer in that Member State, cannot fully discharge that obligation because of the limits imposed by the legislation of that Member State is prejudicial, in my view, to the effectiveness of the system established by Regulation No 1408/71 and the obligations incumbent on insured persons under that regulation.

56. As I have already recalled, the application of the system of conflict rules introduced by Regulation No 1408/71 depends solely on the objective situation of the insured person concerned. Since those conflict rules are binding on both the Member States and the insured persons concerned, the former cannot prevent the latter from fully discharging their obligations under that regulation. In this instance, the Kingdom of the Netherlands cannot, to my mind, prevent a resident from discharging the obligation to take out health care insurance once that Member State has become competent to provide a pension to that insured person, to meet the costs of the social security benefits granted to him and to levy social security contributions on him.

57. Conferring such a degree of latitude on the Member States would have the result of leaving persons falling within the scope of Regulation No 1408/71 without social security cover because there would be no legislation applicable to them. (15) The situation of Mrs Fischer-Lintjens illustrates that risk perfectly, since the health care cover which she enjoyed at the expense of the German competent institutions was interrupted, retroactively, from 1 May 2006, but she would not have been able to take out health care insurance in the Netherlands until, at best, July 2007, even though the latter Member State became competent to pay her a pension and, by extension, to grant her social security benefits under Regulation No 1408/71 on 1 May 2006.

58. To maintain, as the Netherlands Government does, that limiting the retroactivity of health care insurance to four months at most is justified by the need to guarantee the principle of solidarity that informs the scheme and to prevent abuse does not seem to me to have any relevance in a context such as that in the case in the main proceedings.

59. After all, given that such insurance is compulsory, its retroactivity is recognised in principle under the Netherlands legislation itself and there is nothing in the case in the main proceedings to suggest that Mrs Fischer-Lintjens intended to abuse the provisions of EU law, (16) the Kingdom of the Netherlands cannot deprive persons falling within the scope of Regulation No 1408/71 of the possibility of fulfilling their obligations under that act in order to be able to enjoy the full benefit of the rights conferred on them by that regulation, that is to say, in the present case, the right to obtain health care cover from the point in time when that Member State became competent, retroactively from 1 May 2006, to provide the pension payable to Mrs Fischer-Lintjens and to pay social security benefits to her. (17)

60. Such an approach is not contradicted by the Court’s assessment in paragraph 76 of its judgment in van Delft and Others (C‑345/09, EU:C:2010:610) to the effect that the solidarity of a national social security scheme (in that case, too, the Netherlands scheme) must be ensured in mandatory fashion by all the insured persons covered by the scheme, regardless of the individual conduct which each of them may adopt according to their personal situation.

61. After all, on the one hand, those considerations related to the payment by insured persons of deductions of social security contributions to the competent institutions of the Member State whose legislation establishes the existence of the entitlement to social security benefits, an obligation which is not called into question in the present case from the point at which the Kingdom of the Netherlands becomes responsible for payment of a pension and competent to provide social security benefits for an insured person such as Mrs Fischer-Lintjens. On the other hand, the Court’s findings in the aforementioned judgment in van Delft and Others were intended to recall that the conflict rules laid down in Articles 28 and 28a of Regulation No 1408/71 are binding on insured persons and that the latter cannot therefore withdraw from the payment of the deductions of social security contributions provided for by the legislation of a Member State which is responsible for the payment of a pension and required to pay benefits in kind to those insured persons. That, in my view, is precisely the objective situation that arises from the conflict rule laid down in Article 27 of Regulation No 1408/71 and from point 1(a)(i) and (b) of Section R of Annex VI thereto, which imposes on a Member State that recognises the principle of the retroactivity of private health care insurance contracts the obligation to make them retroactive precisely in order to reflect that objective situation and to enable insured persons to exercise in full their rights arising from a such a situation.

62. As regards the interruption of Mrs Fischer-Lintjens’ health care cover between November 2007 and 1 July 2010, I am likewise not convinced of the merits of the explanations given by the Commission, which, while recalling the obligations in connection with the provision of information which Article 84a(1) of Regulation No 1408/71 imposes on persons falling within its scope, considers that Mrs Fischer-Lintjens failed to fulfil those obligations and that she should in consequence be compelled to bear the full consequences of that failure.

63. After all, as the Commission concedes, Article 84(a)(1) of Regulation No 1408/71 is also addressed to the competent institutions of the Member States, which, in accordance with the principle of good administration, must respond to all queries within a reasonable period of time and ‘provide the persons concerned with any information required for exercising the rights conferred on them by … Regulation [No 1408/71]’.

64. In the present case, that obligation must, in my view, be assessed in the context of the features specific to the compulsory health care insurance scheme in the Netherlands, which does not provide for automatic public sickness insurance but obliges the persons concerned to take steps to take out such insurance with a private insurance company.

65. In such a context, I consider that it fell to the competent Netherlands institutions, in this instance the SVB, in accordance with Article 84a(1) of Regulation No 1408/71, to provide Mrs Fischer-Lintjens, when notifying her of the decision of 8 November 2007 on her application for a pension in the Netherlands, with information sufficient to enable her to understand that she was required to take out health care insurance with a private insurance company in order to be able to enjoy in full the rights conferred on her by Regulation No 1408/71. Although this does not appear to have been the case, it is, in any event, a matter for verification by the referring court.

66. If the competent institutions had fulfilled that simple obligation, then, irrespective of the legislative restrictions on the retroactivity of health care insurance which have already been examined, it is highly probable that Mrs Fischer-Lintjens would have immediately taken the steps necessary to take out such insurance, and would not therefore have had to sustain an interruption in her health care cover in the period from November 2007.

67. In the light of the foregoing reasoning, I consider that the answer to the second question referred is that 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.

III – Conclusion

68. In the light of all the foregoing considerations, I propose that the Court reply as follows to the questions 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.

2 –: . Original language: French.

3 –: . OJ, English Special Edition 1971 (II), p. 416; amended and updated version OJ 1997 L 28, p. 1.

4 –: . OJ 2004 L 100, p. 1.

5 –: . OJ 2006 L 392, p. 1.

6 –: . That declaration is based on Article 21 of the 1999 Decree on the extension and restriction of the category of persons affiliated to social insurance schemes (Besluit uitbreiding en beperking kring verzekerden volksverzekeringen 1999).

7 –: . Form E 121, standardised within the European Union, is the certificate needed to register a recipient of a pension paid by a Member State with the institution of his place of residence.

8 –: . According to the referring court, on 15 March 2011, the Cvz’s competence to issue Article 21 declarations was transferred to the SVB. Declarations issued by the Cvz are none the less deemed to have been issued by the SVB, which explains why the SVB is a party to the main proceedings.

9 –: . See, to that effect, the judgments in Rundgren (C‑389/99, EU:C:2001:264, paragraphs 46 and 47) and van der Helder and Farrington (C‑321/12, EU:C:2013:648, paragraphs 44 and 47).

10 –: . Judgment in Rundgren (C‑389/99, EU:C:2001:264, paragraph 47).

11 –: . See, in particular, the judgments in van Delft and Others (C‑345/09, EU:C:2010:610, paragraph 52) and Somova (C‑103/13, EU:C:2014:2334, paragraph 55).

12 –: . See, by analogy, in connection with Article 28(1) of Regulation No 1408/71, the judgment in Somova (C‑103/13, EU:C:2014:2334, paragraphs 55 and 56).

13 –: . See, to that effect, the judgment in Somova (C‑103/13, EU:C:2014:2334, paragraphs 54 and 55 and the case-law cited).

14 –: . See the judgment in van Delftand Others (C‑345/09, EU:C:2010:610, paragraph 62).

15 –: . See, by analogy, inter alia, the judgment in Kuusijärvi (C‑275/96, EU:C:1998:279, paragraph 28).

16 –: . In particular, it is clear from the order for reference that, up until the point of the retroactive change in her situation, Mrs Fischer-Lintjens continued to pay social security contributions to the DAK, the competent German institution.

17 –: . The additional argument put forward by the Netherlands Government to the effect that contracts taken out with private insurance companies are based on an individual assessment of risk and cannot therefore have retroactive effect reaching back more than four months seems questionable to me. After all, given that retroactivity is recognised in principle, risk is already a very relative criterion. Furthermore, as Advocate General Jääskinen stated in footnote 22 of his Opinion in Van Delft and Others (C‑345/09, EU:C:2010:438), the Netherlands compulsory insurance scheme is a scheme which requires individuals to insure themselves against certain risks and private insurers to provide standard contracts covering basic care without individual assessment of the risks.