Raad van bestuur van de Sociale verzekeringsbank v Evans (Advocate General's Opinion) [2014] EUECJ C-179/13

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

(Regulation (EEC) No 1408/71 - Determination of the legislation applicable to a worker in the field of social security - Applicability - Employment at the consulate of a non-Member State - Vienna Convention on Consular Relations of 24 April 1963 - Declaration by a worker that that person chooses not to join the social security scheme of a Member State - Concept of ‘discrimination’)

1. May the competent institution of a Member State, in calculating the old-age pension benefits to which a worker is entitled, exclude periods of employment at the consulate of a non-Member State on the ground that, during such periods, the worker was not affiliated to the social security system of the Member State? That, essentially, is the issue on which the referring court requests guidance from the Court.

2. Article 1 of the Vienna Convention on Consular Relations (‘the VCCR’) (2) sets out the following definition:

‘1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(e) “consular employee” means any person employed in the administrative or technical service of a consular post;

3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by Article 71 of the present Convention.’

3. Article 48 of the VCCR (‘Social security exemption’) is worded as follows:

‘1. Subject to the provisions of paragraph 3 of this Article, members of the consular post with respect to services rendered by them for the sending State, ^[(3)^]and members of their families forming part of their households, shall be exempt from social security provisions which may be in force in the receiving State. ^[(4)^]

2. The exemption provided for in paragraph 1 of this Article shall apply also to members of the private staff who are in the sole employ of members of the consular post, on condition:

(a) that they are not nationals of or permanently resident in the receiving State; and

(b) that they are covered by the social security provisions which are in force in the sending State or a third State.

3. Members of the consular post who employ persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

4. The exemption provided for in paragraphs 1 and 2 of this Article shall not preclude voluntary participation in the social security system of the receiving State, provided that such participation is permitted by that State.’

4. Article 71 of the VCCR (‘Nationals or permanent residents of the receiving State’) provides:

‘1. Except in so far as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privilege provided in paragraph 3 of Article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in Article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.

2. Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families, as well as members of the families of consular officers referred to in paragraph 1 of this Article, shall enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only in so far as these are granted to them by the receiving State. The receiving State shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.’

5. The Kingdom of the Netherlands deposited its instrument of accession to the VCCR with the Secretary-General of the United Nations on 17 December 1985, the accession taking effect from 16 January 1986. (5)

‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or reemployment;

7. Under paragraph 1 of Article 2 (‘Persons covered’) of Regulation No 1408/71, that regulation is to apply, inter alia, to employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States.

8. Article 3(1) (‘Equality of treatment’) of Regulation No 1408/71 provides that, subject to special provisions laid down in that regulation, the persons to whom the regulation applies are to be subject to the same obligations and to enjoy the same benefits under the legislation of any Member State as the nationals of that State.

9. Under paragraph 1 of Article 4 (‘Matters covered’) of Regulation No 1408/71, that regulation is to apply to all legislation on old-age benefits.

10. Title II of Regulation No 1408/71 lays down rules for the determination of the legislation applicable. Article 13 (‘General rules’) states:

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

11. Article 16 (‘Special rules regarding persons employed by diplomatic missions and consular posts, and auxiliary staff of the European [Union]’) of Regulation No 1408/71 provides:

‘1. The provisions of Article 13(2)(a) shall apply to persons employed by diplomatic missions and consular posts and to the private domestic staff of agents of such missions or posts.

2. However, employed persons covered by paragraph 1 who are nationals of the Member State which is the accrediting or sending State may opt to be subject to the legislation of that State. Such right of option may be renewed at the end of each calendar year and shall not have retrospective effect.’

12. Article 6(1) of the General Law on Old-Age Pensions (Algemene Ouderdomswet, ‘the AOW’) provides, inter alia, that persons who reside in the Netherlands and who are below a certain age are to be treated as insured in accordance with the AOW.

13. However, that rule has been relaxed through the discretion conferred on the executive, under various paragraphs of Article 6 of the AOW, to adopt a statutory instrument waiving application of the rule mentioned in the previous point in respect of certain defined categories of persons. (8)

14. According to the order for reference, at the material time, three such statutory instruments had been adopted, setting out special rules in respect of consular officers and staff of foreign States, the relevant provisions for present purposes being:

- Article 2 of the Decree of 19 October 1976 on the extension and restriction of the category of insured persons in respect of national insurance (‘the 1976 Decree’); (9)

- Articles 11 and 12 of the Decree of 3 May 1989 on the extension and restriction of the category of insured persons in respect of national insurance (‘the 1989 Decree’); (10) and

- Article 13 of the Decree of 24 December 1998 on the extension and restriction of the category of insured persons in respect of national insurance (‘the 1998 Decree’). (11)

15. Between 1 October 1976 and 1 July 1989, the 1976 Decree provided that consular officers and assisting staff were not insured for the purposes of the social security scheme unless they had Netherlands nationality.

16. At the time the 1976 Decree was issued, the Netherlands Ministry of Foreign Affairs took the view that consular employees of foreign nationality living in the Netherlands could not be considered to be permanently resident for the purposes of Article 71 of the VCCR. However, the order for reference explains that, as of 1 August 1987, a new policy was adopted (‘the new policy’). Under the new policy, members of staff recruited locally were considered to be permanent residents if, at the time of recruitment, they had already been residing in the Netherlands for more than a year. The new policy only applied to persons employed as of 1 August 1987 and was not to alter previously acquired rights and obligations for persons already working at a consulate.

17. For the same reason, between 1 July 1989 and 1 January 1999, under Article 12 of the 1989 Decree, members of a consular post who were Netherlands nationals or who resided permanently in the Netherlands were insured for the purposes of the social security scheme.

18. Nevertheless, the referring court states that the new policy did not provide sufficient clarity and was therefore modified. As of 1 January 1999, Article 13(3) of the 1998 Decree provides:

‘The members of the administrative, technical and service staff of the diplomatic mission or the consular post of another State shall not be insured for the purposes of the social security scheme if they were already employed as such prior to 1 August 1987, and have been employed as such continuously since 1 August 1987, unless they:

a. perform work in the Netherlands other than the activities referred to in the introductory paragraph; or

By way of derogation from the first sentence, the members of staff and private staff referred to therein shall be insured for the purposes of the social security scheme if they were already insured on 31 July 1987.’

19. In that connection, the Netherlands Ministry of Foreign Affairs allowed staff of foreign consulates who had already been working there before 1 August 1987 to choose, before 15 December 1999, whether they wished to remain unaffiliated to the Netherlands social security scheme.

20. Ms Evans is a British national born in 1955. In 1972 and 1973, she worked in the United Kingdom, where she resided at the time.

21. In 1973, Ms Evans settled in the Netherlands. From 7 November 1973 until 31 March 1977, she worked successively for two undertakings established in the Netherlands. From 18 April 1977 until the end of May 1980, she worked for the British Consulate General in Rotterdam and, upon leaving, received unemployment benefits in the Netherlands.

22. Since 17 November 1980, Ms Evans has been employed as a member of the administrative staff of the Consulate General of the United States of America in Amsterdam (‘the US Consulate’). Following her recruitment, she was covered by a collective health insurance policy taken out by her employer, the US Consulate, with a private insurance provider established in the Netherlands.

23. Upon joining the US Consulate, Ms Evans was granted privileged status (‘geprivilegieerdenpas’; her ‘privileged status’) by the Netherlands Ministry of Foreign Affairs. By virtue of this status she was, inter alia, exempt from paying most taxes and contributions. According to information provided by the US Consulate to the referring court, after Ms Evans started working for the US consulate, no social security contributions were withheld from her salary.

24. In exercise of the choice referred to in point 19 above, Ms Evans opted - in a declaration dated 5 December 1999 (‘the declaration of 5 December 1999’) - for the status of ‘posted’, which meant that she would ‘not be insured under the [Netherlands] social insurance system and [would] therefore not be entitled to the cover it provides’.

25. On 27 March 2008, in response to a request submitted by Ms Evans to that effect, the Raad van bestuur van de Sociale verzekeringsbank (Board of the Social Insurance Bank, ‘the Svb’) informed her of the periods during which she had been insured under the AOW for the purposes of her retirement pension. The Svb stated that the period from 7 November 1973 until 18 November 1980 would be taken into account, but that in its view she had not been insured since she had started working for the US Consulate.

26. Ms Evans challenged that decision before the Rechtbank Amsterdam (Amsterdam District Court). By judgment of 15 March 2011, the Rechtbank Amsterdam held that, pursuant to Article 3 of Regulation No 1408/71 and the judgment of the Court in Boukhalfa, (12) Ms Evans was to be treated as having been insured under the AOW from 18 November 1980 until 12 March 2008. Moreover, that court found Ms Evans to be permanently residing in the Netherlands and her privileged status to be of no relevance in that regard.

27. The Svb appealed against that judgment before the Centrale Raad van Beroep (Higher Social Security Court). Entertaining doubts as to the proper interpretation of Regulation No 1612/68 and Regulation No 1408/71, that court decided to stay the proceedings and to refer the following questions for a preliminary ruling:

‘(1) Must Article 2 and/or Article 16 of Regulation No 1408/71 be construed as meaning that a person like Ms Evans, who is a national of a Member State, who exercised her right of freedom of movement for workers, to whom the social security legislation of the Netherlands was applicable and who then went to work as a member of the service staff of the Consulate General of the United States of America in the Netherlands, from the commencement of such work no longer falls under the personal scope of Regulation No 1408/71?

(2(a)) Must Article 3 of Regulation No 1408/71 and/or Article 7(2) of Regulation No 1612/68 be construed as meaning that the application of privileged status to Ms Evans, which in this case consists inter alia of not being compulsorily insured for the purposes of social security and of not paying contributions in that regard, should be considered a sufficient justification for discriminating on grounds of nationality?

(2(b)) What significance must be attached in that regard to the fact that in December 1999, Ms Evans, when asked, opted for the continuation of the privileged status?’

28. Written observations have been submitted by Ms Evans, the Svb, by the Netherlands and Portuguese Governments, and by the Commission. Except for the Portuguese Government, those parties also presented oral argument at the hearing on 9 April 2014.

29. On an introductory note, seeing as the case under consideration concerns compulsory insurance following an employment relationship which ended prior to 1 May 2010, it falls to be dealt with on the basis of Regulation No 1408/71.

30. Question 1 concerns whether a person in Ms Evans’ circumstances falls within the scope ratione personae of Regulation No 1408/71, as set out in Article 2 thereof, for the period during which she was employed at the US Consulate. (13) The Svb does not dispute the fact that the periods of employment that Ms Evans spent in the Netherlands before working for the US Consulate should be included for the purposes of calculating her retirement pension, and rightly so. Like the Commission, I find it difficult to imagine that Ms Evans might fall outside the scope ratione personae of Regulation No 1408/71 in respect of those periods.

31. Question 2, which is asked in case the Court holds that Regulation No 1408/71 is applicable to the period during which Ms Evans was employed at the US Consulate, deals with whether the refusal to include that period for the purposes of calculating her retirement pension on account of her privileged status and the declaration of 5 December 1999 amounts to unjustified discrimination on grounds of nationality.

32. Both questions require account to be taken of the VCCR provisions on privileges and exemption. However, those provisions did not enter into force in the Netherlands until 16 January 1986, that is to say, more than five years after Ms Evans started working for the US Consulate. As a preliminary point, it is therefore necessary to examine whether, at the material time, the VCCR could be considered to form part of customary international law.

33. The Netherlands Government relies on certain provisions of the VCCR on consular privileges and immunities, notably in support of its contention that, during her employment at the US Consulate, Ms Evans did not fall within the scope ratione personae of Regulation No 1408/71. Formally speaking, however, when Ms Evans was recruited there, that convention was not in force in the Netherlands, where it did not take effect until 16 January 1986. Nonetheless, those provisions might still be relevant in so far as they merely codify customary rules of international law on this issue. If that is indeed the case, they must be taken into account when interpreting provisions of EU law (see point 52 below).

34. As far as I am aware, the Court has not yet had the opportunity to address points concerning the VCCR. However, a substantial body of case-law exists concerning the ‘sister convention’ to the VCCR, namely the Vienna Convention on Diplomatic Relations (‘the VCDR’). (14)

35. The Court has held that the VCDR is a public international law convention concluded by Member States and non-Member States acting in the exercise of their powers as regards diplomatic relations. The VCDR regulates, in principle, bilateral relations between States and not relations between States and the European Union, which is, moreover, not a party to that convention. (15) The Court has further stated that States are represented in the country to which an official is posted by embassies or diplomatic missions and by permanent representations to international organisations in accordance with the rules of customary international law. Such rules are ‘codified, in particular’ by the VCDR. (16)

36. As for the VCCR provisions on the privileges and immunities of consular officers and consular employees, the International Court of Justice (‘ICJ’) has held that they are principles which are deeply rooted in international law. (17) Whilst falling short of an actual statement that the VCCR amounts to a codification of the rules under customary international law, the ICJ has nevertheless taken the view that both ‘Vienna Conventions, which codify the law of diplomatic and consular relations, state principles and rules essential for the maintenance of peaceful relations between States and accepted throughout the world by nations of all creeds, cultures and political complexions’. (18)

37. Accordingly, in light of the case-law of the Court on the VCDR as well as that of the ICJ on both conventions, I take the view that Articles 48 and 71 of the VCCR (to which all Member States are now party), as provisions on privileges and immunities, codify customary international law, as the Netherlands Government also suggests.

38. As the case under consideration partly concerns a period (from 17 November 1980 until 16 January 1986) before the VCCR came into effect in the Netherlands, but after the abovementioned ICJ rulings in relation to the Tehran Hostages affair, the VCCR rules on privileges and immunities apply, by custom, to that period as well.

39. From the outset, the issue that the Court must determine is whether, under Article 2 of Regulation No 1408/71, Ms Evans has been subject to the legislation of a Member State. (19)

40. To my knowledge, the Court has not yet dealt with the specific situation of an employment relationship between a worker and a foreign power (20) at its embassy or consulate in a Member State of which the worker is not a national. (21) Different approaches are conceivable.

41. For example, in order to reach the view that Ms Evans fell within the scope of Regulation No 1408/71, the Rechtbank Amsterdam relied, inter alia, on Boukhalfa. (22) However, the line of authority of which Boukhalfa forms part (23) concerns cases where work was performed outside the territory proper of the European Union, or where it was at least unclear whether the place of performance should be considered to be the territory of the European Union.

42. In contrast, the case under consideration involves a situation where the worker undoubtedly has worked on EU territory. (24) Accordingly, the Court does not have to choose between the principle of territoriality and the principle of a ‘sufficiently close link’ to the European Union as developed in Boukhalfa: (25) quite simply, the former principle applies.

43. Therefore, it would not be too far-fetched to argue that, purely on the basis of the principle of territoriality, Ms Evans is subject to the legislation of a Member State and, consequently, Regulation No 1408/71 is applicable to her situation. In support of such a view, it is tempting to rely on the line of case-law according to which an EU citizen working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 45 TFEU by occupying a position with an international organisation (such as the European Space Agency, Eurocontrol, or the European Patent Organisation). That is the case, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement concluded between the international organisation and the State in which it is established. (26)

44. However, for the following reasons, I do not find that view to be satisfactory.

45. The case under consideration involves a special situation in which international law affords the State of residence the possibility of applying - or leaving unapplied - its rules on social security to consular employees who are permanent residents of that State. Indeed, under Article 48(1) of the VCCR, the receiving State is not generally entitled to require consular employees of a foreign power to pay social security contributions. (27) By way of derogation, Article 71(2) of the VCCR provides that consular employees who are permanently residing in the receiving State are to enjoy facilities, privileges and immunities only in so far as they are granted by that State.

46. In other words, international law neither requires nor forbids individual States to exempt permanently residing consular employees but leaves it, as a matter of national law, to their discretion to decide.

47. In the case under consideration, under the 1976 Decree, the Netherlands initially exempted all permanently resident consular employees who did not have Netherlands nationality from having to pay social security contributions. However, with the adoption of the new policy, the Netherlands placed Dutch consular employees and permanently residing foreign consular employees on an equal footing as from 1 August 1987, requiring them both to contribute to the social security system of the Netherlands.

48. As she had been employed with the US Consulate before that date, Ms Evans was not compulsorily insured under the Netherlands social security system.

49. Nevertheless - like others in a similar situation - Ms Evans was given the possibility in 1999 of opting for the Netherlands social security system, which she declined. She therefore chose not to be affiliated to the Netherlands social security system; nor did she contribute to that system. Moreover, owing to her privileged status, Ms Evans was exempt from paying taxes in the Netherlands.

50. It follows that Ms Evans was not subject to the legislation of a Member State during her employment at the US Consulate. In other words, during that period Regulation No 1408/71 did not apply to her, (28) as not all the conditions laid down in Article 2 thereof were met.

51. Against such a view, the Member State in question cannot be criticised for having lawfully exercised its discretion under international law to require permanently settled consular employees, as from 1 August 1987, to contribute to its social security system.

52. First, I would call to mind that the European Union is bound by the rules of customary international law (29) and that EU law - including Regulation No 1408/71 - must be interpreted in accordance with those rules, (30) such as Article 71(2) of the VCCR. The Court is perfectly aware of this, as it has already construed Regulation No 1408/71 in the light of general principles of international law. (31) Although Article 73 of the VCCR, (32) mentioned by the referring court, gives precedence to other international agreements in force - such as the founding treaties of the European Union (33) - that order of precedence only comes into play in the event of conflict and does not preclude a duty to interpret EU law consistently with the VCCR rules on immunities and privileges. (34) Against that background, the idea of being subject to the legislation of a Member State, as referred to in Article 2 of Regulation No 1408/71, ought to be interpreted in the light of Article 71(2) of the VCCR.

53. Second, any reform - such as the adoption of the new policy - implies, by definition, a change in the status quo, in respect of which transitional provisions must be laid down. Provided that such rules do not interfere unduly with well-established rights, they must be accepted.

54. Lastly, the discretion as to whether national legislation was to be applied ultimately lay with the persons in Ms Evans’ situation, as they were given a choice between maintaining their privileged status and joining the Netherlands social security system. It should be stressed, however, that such a choice cannot affect the lawfulness, under international law, of the discretion that States retain on this point.

55. What remains to be determined is whether this is in some way affected by Article 16 of Regulation No 1408/71, a provision explicitly mentioned by the referring court. That provision lays down a special rule regarding persons employed by diplomatic missions and consular posts. On a proper construction of that rule, do all EU citizens employed at diplomatic missions and consular posts, including those of foreign powers, come within the scope of Regulation No 1408/71?

57. By way of derogation from the general rule set out in Article 13(2)(a) of Regulation No 1408/71 (which gives priority to the Member State of employment, in accordance with the principle of lex loci laboris, over the Member State of residence or the Member State in which the employer is established) - a rule which, under Article 16(1) of that regulation, also applies to ‘persons employed by diplomatic missions and consular posts and to the private domestic staff of agents of such missions or posts’ - Article 16(2) gives an insured person who is a national of the ‘Member State which is the accrediting State or the sending State’ the right to be subject to the legislation of ‘that State’. (35) In my view, paragraphs 1 and 2 of Article 16 ought to be read together, inasmuch as Article 16(1) would not seem, by itself, to regulate a matter not already covered by the principle of lex loci laboris enshrined in Article 13(2)(a). (36) The effect of Article 16 is therefore to provide the posted diplomatic or consular employee with a choice as to whether to apply the law of the place of employment or that of the place of origin.

58. That said, the wording of the English-language version of Article 16(2) of Regulation No 1408/71 does not specify whether that provision applies only to employees of intra-EU diplomatic missions and consular posts, or whether it applies also to employees working in the European Union for diplomatic missions and consular posts of foreign powers. (37) A linguistic comparison, however, reveals that the Danish, Dutch and German versions of Article 16(2) of Regulation No 1408/71 use a somewhat different and more precise structure than many other versions, inasmuch as they only refer to workers who are nationals of the Member State which is the sending State. (38) Accordingly, those language versions in particular make it clear that Article 16(2) does not apply to situations where the sending State is a foreign power, such as in the case under consideration.

59. However, apart from that linguistic issue, the structure and aim of Regulation No 1408/71 appear to rule out both employment relationships with embassies and consulates of Member States situated in third countries and employment relationships with embassies and consulates of foreign powers situated on EU territory.

60. Indeed, as regards the structure of Regulation No 1408/71, Article 2 refers, as mentioned above, to the ‘legislation of one or more Member States’, rather than to the legislation of a third country.

61. Moreover, Articles 6 to 9 of Regulation No 1408/71, which set out rules on the relationship between that regulation and certain international conventions, would be meaningless if the regulation (or specific provisions thereof) were held to be applicable to such situations. (39)

62. As for the overarching aim pursued by Regulation No 1408/71, it is to coordinate the social security legislation of Member States in an intra-EU context. That is apparent from several recitals in the preamble to the regulation. (40) I should add that the Court has consistently held that ‘the provisions of Regulation No 1408/71 determining the applicable legislation form a complete system of conflict rules, the effect of which is to divest the national legislatures of the power to determine the ambit and the conditions for the application of their national legislation on the subject so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned’ (emphasis added). (41) It would not make sense to read this dictum as including the legislative authorities of third countries, in respect of which the European Union has no powers. This is further borne out by the fact that non-Member States only come under the system of coordination of social security legislation set up by Regulation No 1408/71 where this has been specifically authorised by the EU legislature. (42)

63. The ruling in Aldewereld seems to confirm the view that Article 16 of Regulation No 1408/71 is intended to resolve a problem internal to the European Union. Indeed, without the choice available under Article 16, it would be difficult for a Member State to avoid trouble recruiting its own nationals which may result from the application of the legislation of the Member State in which they are employed, when the social security legislation of the Member State of origin is more favourable to them. (43) In contrast, this does not appear to be quite the same aim as that pursued by Article 48 of the VCCR. (44)

64. Seen in that light, the automatic inclusion of persons working at embassies and consulates of foreign powers within the ambit of the coordination of social security systems set up by Regulation No 1408/71 (or even a mere presumption to that effect) would be difficult to reconcile with the exemptions laid down in Article 33(1) of the VCDR and Article 48(1) of the VCCR.

65. Accordingly, Article 16 of Regulation No 1408/71 does not change my basic view that, during her employment at the US Consulate, Ms Evans was not subject to the legislation of a Member State and that, consequently, the regulation was not applicable. The fact that Ms Evans claims to be the victim of unlawful discrimination on grounds of nationality cannot, in itself, bring the matter within the ambit of the regulation.

66. Lastly, as the Commission rightly points out, the fact that Ms Evans was insured under a collective health insurance scheme taken out by the US Consulate with a Netherlands insurance company is of no relevance, as industrial agreements do not in any event come within the scope of Regulation No 1408/71 (see Article 1(j) thereof). (45)

67. On this basis, I propose that the Court answer Question 1 to the effect that, on a proper construction of Articles 2 and 16 of Regulation No 1408/71, that regulation does not apply, at any point during the employment relationship, to a national of a Member State who works, in another Member State, as a member of the administrative or technical service staff of the consulate of a non-Member State if, under the legislation of the host Member State adopted pursuant to Article 71(2) of the Vienna Convention on Consular Relations, that person is excluded from its social security system.

68. The second question has been put forward as an alternative. I will respond briefly to it, in case the Court does not share my view that Regulation No 1408/71 does not apply to the situation before the referring court.

69. By its second question, the referring court essentially wishes to know whether, by dint of her privileged status and the declaration of 5 December 1999, Ms Evans cannot, in the case under consideration, meaningfully be considered to be the victim of discrimination on grounds of nationality. (46)

70. If it were to be concluded that Ms Evans was subject to the legislation of a Member State during her employment with the US Consulate, then, by the same token, the principle of non-discrimination laid down in Article 45 TFEU, Article 7 of Regulation No 1612/68 and Article 3 of Regulation No 1408/71 must apply.

71. However, the principle of non-discrimination enshrined in those provisions does not only require that comparable situations must not be treated differently, but also that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. (47)

72. In the case under consideration, the referring court in essence requests guidance as to whether Ms Evans’ special status is sufficiently different to distinguish her from a person who works at the consulate of a foreign power and who is either (i) an EU citizen permanently residing in the Netherlands after 1 August 1987 or (ii) a Netherlands national (‘the other two types of consular employee’).

73. In this respect, the Svb and the Netherlands Government contend that Ms Evans’ situation cannot be compared to that of the other two types of consular employee. In the alternative, those parties argue that the rules laid down in the 1976 Decree, the 1989 Decree and the 1998 Decree do not distinguish between persons on the basis of nationality, and that they are justified in any event on the basis of public international law.

74. In my view, the case under consideration does not give rise to an instance of discrimination, inasmuch as Ms Evans’ situation is not comparable with that of the other two types of consular employee.

75. Under Article 71(2) of the VCCR, Ms Evans’ affiliation to the Netherlands social security system was governed by national law. In the event that the Court should find that this factor does not, in itself, place Ms Evans’ situation outside the scope of Regulation No 1408/71, I would point out that Ms Evans’ situation was objectively different in fact and at law from that of the other two types of consular employee.

76. Indeed, Ms Evans’ situation is different at law inasmuch as, unlike the other two types of consular employee, who are compulsorily insured and obliged to contribute to the Netherlands social security system, she was originally exempt from that system and, later, in a position where affiliation to that system would have been of her own choosing. (48) Ms Evans’ situation is factually different in that, by virtue of this legal difference and the choice that she made, she continued after 17 November 1980 to pay no contributions to the Netherlands social security system. A worker in Ms Evans’ situation cannot reasonably, therefore, entertain the same expectations in relation to social security as the other two types of consular employee.

77. On that basis, should the Court hold Regulation No 1408/71 to be applicable here, I would advise against finding that the circumstances of the case under consideration involve an instance of unjustified discrimination.

78. From the position that I took in point 76 above, it follows that, if Question 2(b) were to be understood as asking whether, in light of the declaration of 5 December 1999, Ms Evans has been the victim of unlawful discrimination, my answer would have to be ‘no’. However, if, by Question 2(b), the referring court calls upon the Court to clarify - should the Court find Ms Evans’ situation to be comparable with that of the other two types of consular employee and hold that she has been treated differently because of her nationality - whether the declaration of 5 December 1999 might remedy such an unlawful situation, my views are as follows.

79. The basic rules on freedom of movement laid down in the FEU Treaty, including Article 45 TFEU, are rules of primary law which give rise to rights for individuals that the national courts must protect. (49) Those rules are effectively a cornerstone of the internal market. In this respect, I would call to mind that Member States have even been held accountable where they did not do enough to ensure freedom of movement. (50) Under certain circumstances, even private individuals cannot escape the prohibition on discrimination on grounds of nationality laid down in Article 45 TFEU. (51)

80. The concept of ‘discrimination’ reflected in Article 45 TFEU is, moreover, an objective concept. According to the Court, freedom of movement for workers within the European Union entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. (52)

81. To my mind, therefore, subjective circumstances have little bearing here. In other words, whether or not a person has accepted being discriminated against cannot make or unmake an instance of discrimination. Accordingly, I am not prepared to accept that, owing to the declaration of 5 December 1999, Ms Evans might be precluded, on the basis of the principle of venire contra factum proprium, from claiming that she has been discriminated against.

82. To defend the contrary view would amount to encouraging Member States to put pressure on private individuals to accept a wrongful situation and, as argued by Ms Evans at the hearing, dissuade them from exercising the rights that the free movement provisions in the Treaty confer directly upon them. (53) Consequently, should the Court find Regulation No 1408/71 to be applicable and hold that the Netherlands rules at issue are in breach of the principle of non-discrimination on grounds of nationality, I doubt that the declaration of 5 December 1999 could preclude Ms Evans from asserting the right, directly conferred on her by Article 45 TFEU, not to be discriminated against.

83. In light of the foregoing, I propose that the Court respond to the questions referred by the Centrale Raad van Beroep (Netherlands) as follows:

On a proper construction of Articles 2 and 16 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, that regulation does not apply, at any point during the employment relationship, to a national of a Member State who works, in another Member State, as a member of the administrative or technical service staff of the consulate of a non-Member State if, under the legislation of the host Member State adopted pursuant to Article 71(2) of the Vienna Convention on Consular Relations of 24 April 1963, that person is excluded from its social security system.

2 - The Vienna Convention on Consular Relations concluded in Vienna on 24 April 1963, United Nations - Treaty Series, Vol. 596, p. 261.

3 - The concept of ‘sending State’ is also referred to as ‘State of origin’ within this Opinion.

4 - The concept of ‘receiving State’ is also referred to as ‘the host State’ or ‘the State of residence’ within this Opinion.

6 - Council Regulation of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition 1968(II), p. 475), as amended.

7 - Council Regulation 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 (OJ English Special Edition 1971(II), p. 416), as amended.

8 - From 25 November 1975 until 1 April 1985, that possibility was provided for in Article 6(3) of the AOW and, between 1 April 1985 and 1 July 1998, in Article 6(2) thereof. As of 1 July 1998, that possibility was again allowed under Article 6(3) of the AOW.

9 - Besluit uitbreiding en beperking kring verzekerden volksverzekeringen van 19 oktober 1976, Staatsblad 1976, 557; amended by Royal Decree of 7 July 1982, Staatsblad 1982, 457, and by Royal Decree of 20 August 1984, Staatsblad 1984, 398.

10 - Besluit uitbreiding en beperking kring verzekerden volksverzekeringen van 3 mei 1989, Staatsblad 1989, 164.

11 - Besluit uitbreiding en beperking kring verzekerden volksverzekeringen van 24 december 1998, Staatsblad 1998, 746.

13 - From which, like the Netherlands Government, I infer that she was a ‘consular employee’ as defined in Article 1(e) of the VCCR.

14 - Vienna Convention on Diplomatic Relations, concluded in Vienna on 18 April 1961, United Nations - Treaty Series, Vol. 500, p. 95. Regarding the immunity of jurisdiction of an embassy of a foreign power, see Mahamdia (C-154/11, EU:C:2012:491).

16 - Commission v Hosman-Chevalier, C-424/05 P, EU:C:2007:367, paragraph 39 (emphasis added). See also Salvador García v Commission, C-7/06 P, EU:C:2007:724, paragraph 51; Herrero Romeu v Commission, C-8/06 P, EU:C:2007:725, paragraph 45; SalazarBrier v Commission, C-9/06 P, EU:C:2007:726, paragraph 49; and De Bustamante Tello v Council, C-10/06 P, EU:C:2007:727, paragraph 41.

17 - See United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports1979, p. 7, paragraph 40.

18 - See United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, paragraph 45.

19 - For the sake of completeness, it should be pointed out that the Netherlands Government not only denies that Dutch law applies to Ms Evans, but also that she qualifies as an ‘employed person’ for the purposes of Article 2 of Regulation No 1408/71, as, according to that government, she does not meet the definition in Article 1(a) of that regulation, owing to the fact that she is neither compulsorily nor voluntarily insured in accordance with that definition. This second point is directly related to the first, however, and I will therefore not deal with it separately any further.

21 - The judgment in Gómez Rivero (C-211/97, EU:C:1999:275) concerned the spouse of a Spanish national working at the Spanish Consulate General in Hanover (Germany) and not at the consulate of a non-Member State.

24 - Under international law, the buildings of a foreign representation cannot be regarded as forming part of the national territory of the State represented; see the Opinion of Advocate General Léger in Boukhalfa (EU:C:1995:381), point 26 and the authorities cited therein. See also Denza, E., Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations, Oxford University Press, New York: 2008 (3^rd ed.), pp. 136 to 137, and Crawford, J., Brownlie’s Principles of Public International Law, Oxford University Press, Oxford: 2012 (8^th ed.), p. 397.

26 - See Echternach and Moritz, 389/87 and 390/87, EU:C:1989:130, paragraphs 11 and 12, and Schmid, C-310/91, EU:C:1993:221, paragraph 20. See also Gardella, C-233/12, EU:C:2013:449, paragraphs 25 and 26.

27 - That is not the same as allowing consular employees the possibility of opting into the social security system of the receiving State, which is possible if that State allows it, see Article 48(4) of the VCCR.

28 - By contrast, see Boukhalfa (EU:C:1996:174, paragraph 16), where the Court emphasised that Ms Boukhalfa was affiliated to the German social security system and was subject to a limited extent to German income tax. Advocate General's Opinion in that case (EU:C:1995:381, point 5), that Ms Boukhalfa had paid contributions to that system.

29 - See Racke, C-162/96, EU:C:1998:293, paragraph 45, and Air Transport Association of America and Others, C-366/10, EU:C:2011:864, paragraph 101.

31 - See Salemink, EU:C:2012:17, paragraph 31, in respect of the law relating to the legal regime applicable to the continental shelf.

32 - That provision is worded as follows: ‘1. The provisions of the [VCCR] shall not affect other international agreements in force as between States parties to them. 2. Nothing in the [VCCR] shall preclude States from concluding international agreements confirming or supplementing or extending or amplifying the provisions thereof.’

33 - However, according to the Draft Articles on Consular Relations, the purpose of Article 73 ‘is to specify that the [VCCR] shall not affect international conventions or other agreements between the contracting parties in the subject of consular relations and immunities’ (emphasis added) (Yearbook of the International Law Commission, 1961, Vol. II, p. 128, on draft Article 71).

34 - In this respect, I would draw attention to the fact that the European Union is itself not unfamiliar with the concepts of immunities and privileges, as rules to that effect are laid down in EU primary law and, specifically, in Articles 16 and 17 of Protocol (No 7) on the Privileges and Immunities of the European Union.

35 - Regarding that provision, see Gómez Rivero, EU:C:1999:275, paragraphs 22 to 23.

36 - Much emphasis has been placed on the question - which arises because of differences between the various language versions - whether Ms Evans, a ‘consular employee’ within the meaning of Article 1(e) of the VCCR, comes within the personal scope of Article 16 of Regulation No 1408/71. However, like the Commission, I would stress that there is no apparent legal basis in Regulation No 1408/71 for applying the VCCR definitions to Article 16 of that regulation. More importantly, however, the question whether Ms Evans comes within the personal scope of Article 16 is not decisive in my view. It is therefore unnecessary to analyse that issue further.

37 - In English, the concept of ‘accrediting State’ can be understood to mean the sending State (even though such a reading would imply that Article 16(2) of Regulation No 1408/71 would contain a tautology). Such a reading would be consistent with other language versions, such as the French, which uses the expression ‘l’État membre accréditant’ rather than ‘l’État membre accréditaire’ (see furthermore the observations made in and in relation to the following footnote).

38 - DA: ‘De i stk. 1 nævnte arbejdstagere, der er statsborgere i den medlemsstat, som den pågældende mission eller det pågældende konsulat repræsenterer …’; DE: ‘Die in Absatz 1 bezeichneten Arbeitnehmer, die Staatsangehörige des entsendenden Mitgliedstaats sind …’; NL: ‘Niettemin mogen de in lid 1 bedoelde werknemers die onderdaan zijn van de Lid-Staat welke zendstaat is …’. Besides, as alluded to in the preceding footnote, the French version of Article 16(2) of the regulation refers to ‘l’État membre accréditant’ and ‘l’État membre d’envoi’, yet in no instance to a foreign power.

39 - In particular, Article 6(b) of Regulation No 1408/71 provides: ‘Subject to the provisions of Articles 7, 8 and 46(4) this Regulation shall, as regards persons and matters which it covers, replace the provisions of any social security convention binding … at least two Member States and one or more other States, where settlement of the cases concerned does not involve any institution of one of the latter States’ (emphasis added). This provision therefore explicitly distinguishes between Member States and foreign powers.

40 - See, in particular, recitals 2 and 5 to 8 in the preamble to Regulation No 1408/71.

41 - See, inter alia, van Delft and Others, Case C-345/09, EU:C:2010:610, paragraph 51 and case-law cited.

42 - See, to that effect, Xhymshiti, C-247/09, EU:C:2010:698, paragraphs 31 to 36; United Kingdom v Council, C-431/11, EU:C:2013:589, paragraph 47; and United Kingdom v Council, C-656/11, EU:C:2014:97, paragraphs 57 to 59 and 63.

44 - According to the Draft Articles on Consular Relations, ‘[the] exemption [in Article 48 of the VCCR] from social security regulations is justified on practical grounds. If whenever in the course of his career a member of the consulate was posted to consulates in different countries he ceased to be subject to the social security legislation of the sending State (health insurance, old age insurance, disability insurance, etc.), and if on each such occasion he were expected to comply with the provisions of legislation different from that of the sending State, considerable difficulties would result for the official or employee concerned. It is thus in the interests of all States to grant the exemption specified in this article, in order that the members of the consulate may continue to be subject to their national social security legislation laws without any break in continuity’ (emphasis added) (Yearbook of the International Law Commission, 1961, Vol. II, pp. 119 to 120).

46 - I might add that the discrimination of which Ms Evans claims to have been the victim is the paradoxical result of a national rule which - at least under the 1976 Decree - initially rather appeared to involve a situation of reverse discrimination against Netherlands nationals, who in general were (and still are) barred from obtaining the privileged status.

47 - See, inter alia, Garcia Avello, C-148/02, EU:C:2003:539, paragraph 31, and Huber, C-524/06, EU:C:2008:724, paragraph 75.

48 - As for the possibility for insured persons to choose the legislation applicable to them, see, by way of comparison, Aldewereld (EU:C:1994:271, paragraph 18), where the Court held that the only provision in Title II of Regulation No 1408/71 providing for an option exercisable by a worker is Article 16. On this issue, see, moreover, my Opinion in I (C-255/13, EU:C:2014:178, points 59 to 61).

49 - See, to that effect, Brasserie du pêcheur and Factortame, C-46/93 and C-48/93, EU:C:1996:79, paragraph 54.

50 - See, inter alia, Commission v France, C-265/95, EU:C:1997:595, paragraphs 30 to 32, and Schmidberger, C-112/00, EU:C:2003:333, paragraph 58.

51- See Angonese, C-281/98, EU:C:2000:296, paragraph 36, and Raccanelli, C-94/07, EU:C:2008:425, paragraphs 45 and 46.

53 - See similarly, albeit on a very different issue, the joint Opinion of Advocate General Bot in Bero and Bouzalmate (C-473/13 and C-514/13) and Pham (C-474/13), currently pending, points 190 and 201.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Raad van bestuur van de Sociale verzekeringsbank v Evans (Advocate General's Opinion) [2014] EUECJ C-179/13_O (19 June 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C17913_O.html Cite as: [2014] EUECJ C-179/13_O

Court of Justice of the European Communities (including Court of First Instance Decisions)