F. van der Helder and D. Farrington v College voor zorgverzekeringen (C-321/12)

Contents

Judgment of the Court (Third Chamber)10 October 2013^note(Social security — Regulation (EEC) No 1408/71 — Article 28(2)(b) — Sickness insurance benefits — Entitlement to an old‑age pension in several Member States — Residence in another Member State — Provision of benefits in kind in the State of residence — Burden of the cost of benefits — Member State legislation to which the pensioner has been subject for the longest period of time — Concept)In Case C‑321/12,REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Netherlands), made by decision of 27 June 2012, received at the Court on 2 July 2012, in the proceedingsF. van der Helder,D. FarringtonvCollege voor zorgverzekeringen,THE COURT (Third Chamber),composed of M. Ilešič, President of the Chamber, E. Jarašiūnas, A. Ó Caoimh (Rapporteur), C. Toader and C.G. Fernlund, Judges,Advocate General: N. Wahl,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 18 April 2013,after considering the observations submitted on behalf of:— Mr van der Helder, by himself and W. Wehmeijer, advocaat,— Mr Farrington, by himself,— the College voor zorgverzekeringen, by M. Mulder and K. Siemeling, advocaat,— the Netherlands Government, by K. Bulterman and C. Wissels, acting as Agents,— the Estonian Government, by M. Linntam, acting as Agent,— the Finnish Government, by S. Hartikainen, acting as Agent,— the Swedish Government, by S. Johannesson and C. Meyer-Seitz, acting as Agents,— the United Kingdom Government, by H. Walker and C. Murrell, acting as Agents, and R. Palmer and J. Coppel, Barristers,— the European Commission, by M. van Beek and V. Kreuschitz, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 19 June 2013,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 28(2)(b) of Regulation (EEC) No 1408/71 of the Council 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1) (‘Regulation No 1408/71’).

2The request has been made in proceedings between Mr van der Helder and Mr Farrington and the College voor zorgverzekeringen (Health Care Insurance Board, ‘the CVZ’) concerning the payment of contributions to the Netherlands compulsory statutory sickness insurance scheme.

Legal context

European Union law

3Article 1 of Regulation No 1408/71 states, under the heading ‘Definitions’:‘For the purposes of applying this Regulation:…(j) “legislation” means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2) or those special non-contributory benefits covered by Article 4(2a).…(r) “period of insurance” means periods of contribution, employment or self-employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance …’

4Article 4 of Regulation No 1408/71, entitled ‘Matters covered’, provides in paragraph 1:‘This Regulation shall apply to all legislation concerning the following branches of social security:(a) sickness and maternity benefits;(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;(c) old-age benefits;(d) survivors’ benefits;(e) benefits in respect of accidents at work and occupational diseases;(f) death grants;(g) unemployment benefits;(h) family benefits.’

5Title III of that regulation contains provisions particular to those different categories of benefits. Chapter 1 of Title III concerns sickness and maternity benefits. Section 5 of that chapter, entitled ‘Pensioners and members of their families’, contains Articles 27 to 34 of the regulation.

6Article 27 of Regulation No 1408/71, entitled ‘Pensions payable under the legislation of one or more States, in cases where there is no right to benefits in the country of residence’, provides that:‘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 and Annex VI shall, with the members of his family, 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.’

7Article 28 of Regulation No 1408/71, entitled ‘Pensions payable under the legislation of one or more States, in cases where there is no right to benefits in the country of residence’, states:1.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 shall nevertheless receive such benefits for himself and for members of his family, in so far as he would, taking account, where appropriate, of the provisions of Article 18 and Annex VI, 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. The benefits shall be provided under the following conditions:(a) benefits in kind shall be provided on behalf of the institution referred to in paragraph 2 by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the State in whose territory he resides and were entitled to such benefits;…2.In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution as determined according to the following rules:…(b) where the pensioner is entitled to the said benefits under the legislations of two or more Member States the cost thereof shall be borne by the competent institution of the Member State to whose legislation the pensioner has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits the cost shall be borne by the institution administering the legislation to which the pensioner was last subject.’

8Article 28a of the same regulation, entitled ‘Pensions payable under the legislation of one or more of the Member States other than the country of residence where there is a right to benefits in the latter country’, provides:‘Where the pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor is any pension payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 28(2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated.’

9Article 33 of Regulation No 1408/71, entitled ‘Contributions payable by pensioners’, provides:1. The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity shall be authorised to make such deductions, calculated in accordance with the legislation concerned, from the pension payable by such institution, to the extent that the cost of the benefits under Article 27, 28, 28a, 29, 31 and 32 is to be borne by an institution of the said Member State.2. Where, in the cases referred to in Article 28a, the acquisition of benefits in respect of sickness and maternity is subject to the payment of contributions or similar payments under the legislation of a Member State in whose territory the pensioner in question resides, by virtue of such residence, these contributions shall not be payable.’

10Pursuant to Article 36(1) of that regulation, benefits in kind provided by the institution of one Member State on behalf of the institution of another Member State, pursuant in particular to Articles 28, 28a and 33 of the regulation are to be fully refunded.

11Article 95 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for Implementing Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Council Regulation (EC) No 1223/98 of 4 June 1998 (OJ 1998 L 168, p. 1), provides that the amount of the benefits in kind provided under Article 28 and 28a of Regulation No 1408/71 is to be refunded by the competent institutions to the institutions which provided the said benefits, on the basis of a lump-sum which is as close as possible to the actual expenditure incurred, the detailed rules for which are defined in that provision.

Netherlands law

12Before 1 January 2006, the Law on sickness funds (Ziekenfondswet, ‘the ZFW’) laid down a compulsory statutory sickness insurance scheme only for employees whose income was below a certain threshold. Persons not covered by that scheme, on the other hand, had to conclude an insurance contract privately with an insurance company in order to be covered against the risk of sickness.

13That compulsory statutory scheme was also applicable, under certain conditions, to non-resident recipients of a pension under the General Law on old-age insurance (Algemene Ouderdomswet, ‘the AOW’) or the Law on insurance against incapacity for work (Wet op de arbeidsongeschiktheidsverzekering).

14From 1 January 2006, the Law on healthcare insurance (Zorgverzekeringswet, ‘the ZVW’, the applicable version of which in the present case is that of 1 August 2008) has laid down a compulsory statutory sickness insurance scheme for all persons residing or working in the Netherlands.

15Section 69 of that law is worded as follows:1. Persons living abroad who, by the application of a regulation of the Council of the European Communities or by the application of such a regulation pursuant to the Agreement on the European Economic Area or to an agreement on social security, have, when they are in need of health care, a right to health care or to the reimbursement of the costs thereof, as provided for in the legislation on health care insurance of their country of residence, must report to the [CVZ] unless they are obliged to take out health care insurance under the present Law.2. The persons referred to in paragraph 1 are obliged to pay a contribution to be determined by ministerial regulation, a portion of which, as determined by that regulation, is to be regarded as a health-care insurance premium for the purposes of the application of the Law on health-care allowances [(Wet op de zorgtoeslag)].…4. The [CVZ] shall be responsible for the administration resulting from paragraph 1 and the international rules referred to there and for decisions on the levy of the contributions referred to in paragraph 2. ...’

16In addition, both before and after 1 January 2006, the General Law on exceptional medical expenses (Algemene wet bijzondere ziektekosten) ensured that the entire population was covered against the risk of exceptional medical expenses, such as, in particular, risks which are not covered by the ZFW and the ZVW or by private insurance.

The dispute in the main proceedings and the question referred for a preliminary ruling

17Mr van der Helder is a retired Netherlands national who has resided in France since 1991. Over the course of his career he resided and worked in a number of Member States. Since August 1997, Mr van der Helder has received a pension from the Netherlands under the AOW. That pension is based on 43 completed years of insurance in that Member State. Those rights were acquired partly on the basis of residence, and partly on voluntary insurance. In addition to that pension, Mr van der Helder also receives a statutory old-age pension from the Republic of Finland, where he was insured from 1980 to 1987. Furthermore, he also receives a statutory old-age pension from the United Kingdom of Great Britain and Northern Ireland.

18Mr Farrington is a retired British national who has resided in Spain since May 2004. Over the course of his career he resided and worked in a number of Member States, namely in the United Kingdom and in the Netherlands. As of April 2006, he has received an AOW pension, in accordance with Netherlands law. That pension is based on 35 completed years of insurance in that Member State. In addition to that pension, Mr Farrington also receives a statutory old-age pension from the United Kingdom, where he worked from 1957 to 1972.

19Until 1 January 2006, neither Mr van der Helder nor Mr Farrington was required to be insured under the Netherlands statutory sickness insurance scheme. They had private sickness insurance. By contrast, both Mr van der Helder and Mr Farrington were insured under the General Law on Special Medical Expenses whilst resident in the Netherlands.

20Following the entry into force of the ZVW, on 1 January 2006, the CVZ considered that, since Mr van der Helder and Mr Farrington would have fallen, if they had resided in the Netherlands, within the compulsory statutory sickness insurance scheme laid down in the ZVW, and since they are not entitled to an old‑age pension in their Member State of residence and were insured for the longest period of time during their careers under the Netherlands statutory social security scheme, they were to benefit from payments in kind in their Member State of residence, the costs of which were to be borne by the Netherlands, in accordance with Articles 28 and 28a of Regulation No 1408/71.

21Thus, the CVZ decided to deduct, from the pensions payable to Mr van der Helder and Mr Farrington, the contributions provided for in Article 69 of the ZVW, under the statutory sickness insurance scheme introduced by that law.

22Mr van der Helder and Mr Farrington brought an appeal before the Centrale Raad van Beroep against the judgments delivered at first instance by the Rechtbank Amsterdam. The Centrale Raad van Beroep considers that, since the applicants in the main proceedings are entitled to old‑age pensions in at least two Member States, payment of benefits in kind falls, in accordance with Article 28(2)(b) of Regulation No 1408/71, on the competent institution of the Member State to whose ‘legislation’ the pensioners have been subject for the longest period of time.

23The Centrale Raad van Beroep considers that the concept of ‘legislation’ may be interpreted in at least three different ways.

24According to the first interpretation, supported by Mr van der Helder and Mr Farrington, that concept relates to legislation on sickness and maternity benefits. Although Mr van der Helder and Mr Farrington do not dispute having worked for the longest period of time in the Netherlands and having been subject to Netherlands social security law for the longest period of time, they have, however, never been affiliated to the statutory sick insurance scheme in the Netherlands or, in any event, they were affiliated to it for a shorter period of time than they were covered under sickness insurance in another Member State. In the present case, the Member States which are required to pay benefits in kind in the State of residence are thus, according to this interpretation, Finland and the United Kingdom respectively. This interpretation was allegedly upheld by the Regeringsrätten (Supreme Administrative Court of Sweden) in judgment No 4381-10 Wehmeyer of 14 December 2011. If that reasoning were to be followed, it would be necessary to know whether account must be taken, in determining the Member State ‘legislation’ to which the applicants in the main proceedings have been subject for the longest period of time, of only statutory sickness insurance or also of sickness and maternity insurance taken together.

25Pursuant to the second interpretation, defended by the Rechtbank Amsterdam and favoured by the referring court, the concept of ‘legislation’ refers to the pension arrangements which constitute the basis of the current pension of the persons concerned. That interpretation, it is claimed, results from the judgment in Case C-389/99 Rundgren [2001] ECR I-3731, paragraphs 44 to 49. This interpretation would also be consistent with the fact that sickness insurance schemes are funded through contributions based on the income of the persons concerned, which, in the case of pensioners, takes the form of pension deductions. If that interpretation were to be upheld, it would still be necessary to determine whether account needs to be taken of the whole period during which contributions were made to the pension scheme, independently of its basis and the actual payment of contributions. Moreover, the question would arise as to whether voluntary periods of contributions to an insurance scheme must be deducted.

26Lastly, according to the third interpretation, supported by the CVZ, the concept of ‘legislation’ refers to social security legislation taken as a whole. According to the CVZ, the aim of Article 28(2) of Regulation No 1408/71 is to make the Member State to whose social security scheme a person has contributed for the longest period of time responsible for healthcare expenses incurred during retirement. That interpretation finds support, it claims, in Article 1(j) of that regulation, which defines the term ‘legislation’ by reference to Article 4 of the regulation. If that reasoning were to be followed, the question would arise as to whether voluntary periods of contributions to an insurance scheme are to be taken into account.

27In those circumstances, the Centrale Raad van Beroep decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Does the phrase ‘legislation [to which] the pensioner has been subject for the longest period of time’ in Article 28(2)(b) of Regulation … No 1408/71 refer to legislation concerning benefits in respect of sickness and maternity, to legislation concerning cash benefits in respect of old age, or to all legislation concerning the branches of social security mentioned in Article 4 of Regulation No 1408/71 which were applicable pursuant to Title II of that regulation?’

28At the request of the referring court, the President of the Court decided that the present case should be given priority, in accordance with Article 53(3) of the Rules of Procedure of the Court.

Consideration of the question referred

29By its question, the referring court asks whether Article 28(2)(b) of Regulation No 1408/71 must be interpreted as meaning that the ‘legislation’ to which the pensioner has been subject for the longest period of time, referred to in the provision, is that relating to sickness and maternity benefits, that relating to pensions, or all legislation relating to the branches of social security listed in Article 4 of that regulation which were applicable.

30It is apparent from the order for reference that that question has been raised in the context of a dispute regarding the lawfulness of decisions of the Netherlands authorities to make deductions, from pensions which they provide to a Netherlands national and a British national who receive pensions in accordance with the legislation of several Member States other than the French Republic and the Kingdom of Spain where they are resident, in respect of the sickness benefits in kind provided, under Article 28 of Regulation No 1408/71, in their Member State of residence in which they are not entitled to those benefits. Those decisions follow the entry into force in the Netherlands, on 1 January 2006, of the new compulsory sickness insurance scheme put in place by the ZVW which, in replacing the system planned prior to that date by the ZFW for only salaried workers with incomes below certain thresholds, now applies to all persons resident or working in that Member State.

31The Court notes, in this regard, that Article 28 of Regulation No 1408/71 lays down a ‘conflict rule’ enabling the determination, particularly in relation to pensioners entitled to draw pensions in accordance with the legislation of several Member States and who reside in another Member State in which they are not entitled to sickness and maternity benefits, of the institution which is responsible for payment of those benefits and which legislation is applicable (see, to that effect, Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 12; Rundgren, paragraphs 43 and 44; Case C-156/01 van der Duin and ANOZ Zorgverzekeringen [2003] ECR I-7045, paragraph 39; and Case C-345/09 van Delft and Others [2010] ECR I-9879, paragraph 38).

32In accordance with Article 28(1) of Regulation No 1408/71, those pensioners benefit from such sickness and maternity benefits as paid by the competent institution in their Member State of residence to the same extent that they would under the legislation of the State responsible for payment of the pension if they were resident in its territory (see, to that effect, van der Duin and ANOZ Zorgverzekeringen, paragraphs 40, 47 and 53, and van Delft and Others, paragraph 39).

33Under Article 28(2)(b) of Regulation No 1408/71, where several Member States are competent in relation to the payment of pensions, responsibility for payment of sickness and maternity benefits in kind is to be borne by one of them, to be determined on the basis of the duration during which the pensioner was subject to the legislation of each of those Member States, that is to say the competent institution of the Member State ‘to whose legislation the pensioner has been subject for the longest period of time’.

34In the present case, it is clear from the order for reference that the CVZ regards itself as competent to claim from the applicants in the main proceedings payment of contributions in relation to sickness benefits in kind provided, pursuant to Article 28 of Regulation No 1408/71, in their Member State of residence, on the ground that, in accordance with Article 28(2)(b) of that regulation, the applicants were subject to the Netherlands social security scheme for the longest period of time. That interpretation is shared, in these proceedings, by the Netherlands and Swedish Governments.

35By contrast, in their observations, the applicants in the main proceedings submit that that provision refers to legislation regarding sickness and maternity benefits. The Estonian, Finnish and United Kingdom Governments, together with the European Commission, take the view that reference is to be made to national legislation governing pensions.

36According to settled case-law, it is necessary, when interpreting a provision of European Union law, to consider its wording, its context and its aims (see, inter alia, Rundgren, paragraph 41 and the case-law cited).

37In so far as concerns the wording of Article 28(2)(b) of Regulation No 1408/71, it is true, as submitted by Mr van der Helder, that the first part of the first sentence of that provision refers to legislation relating to sickness and maternity benefits.

38However, such a fact cannot necessarily be decisive in providing an answer to the referring court. That part of the first sentence seeks only to reiterate the nature of the benefits to which Title III of Regulation No 1408/71 relates, whereas the term ‘legislation’ in the second part of that sentence, which the question referred concerns, relates to the determination of the Member State which is required to pay those benefits in the specific case of pensioners entitled to draw a pension under the ‘legislation’ of one or more Member States.

39Moreover, although it is true that Article 1(j) of Regulation No 1408/71 defines ‘legislation’ as referring, essentially, to national provisions relating to the branches and schemes of social security covered by Article 4(1) and (2), and the special non-contributory benefits referred to in Article 4(2a) of the regulation, it cannot be inferred that the use of that term in other provisions of the same regulation refers systematically to all schemes and branches of social security.

40As the Finnish Government has rightly pointed out, the sole aim of Article 1(j) and 4(1) to (2a) of Regulation No 1408/71 is to define the material scope of that regulation, by excluding, inter alia, provisions of industrial agreements. By contrast, those provisions do not seek to define the specific rules applicable to the different categories of benefits listed under Title III of that regulation.

41In those circumstances, in determining the scope of the concept of ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purposes of Article 28(2)(b) of Regulation No 1408/71, it is necessary to refer to the context and aim of the provision itself.

42In that regard, the Court notes that Article 28 of Regulation No 1408/71, like Articles 27 and 28a, forms part of Section 5 of Chapter 1 of Title III of the regulation, relating to the entitlement of pensioners to sickness and maternity benefits.

43Article 27 of Regulation No 1408/71 deals with the situation of a pensioner who is entitled to draw pensions under the legislation of several Member States, including that of the Member State in whose territory he resides, and who is also entitled to benefits in that Member State. Article 28 of the regulation, as has been determined in paragraphs 31 and 32 above, deals with the situation of a pensioner who is entitled to draw pensions under the legislation of one or more Member States, other than the Member State in whose territory he resides, and who is not entitled to benefits in that latter Member State. Article 28a of the regulation governs a situation similar to that covered by Article 28, the difference being that there is an entitlement to benefits in kind in the Member State of residence (Rundgren, paragraph 43).

44Under the system thus established by Articles 27, 28 and 28a, the institution which has to bear the cost of the benefits in kind in respect of sickness and maternity will always be an institution of a Member State competent in respect of pensions, since the pensioner would have a right to those benefits under the legislation of that Member State if he resided in its territory (see, to that effect, Rundgren, paragraph 46).

45In that regard, Article 28a of Regulation No 1408/71, which concerns the situation in which the State of residence of the pensioner does not make entitlement to benefits in kind subject to conditions of insurance or employment, also provides explicitly that ‘the cost of [those] benefits shall be borne by the institution of one of the Member States competent in respect of pensions’, in order that their cost should not be borne by the Member State in which the person concerned resides, merely by virtue of the fact that he resides there. The objective of this provision is to ensure that Member States are not penalised where their legislation confers a right to receive benefits in kind merely by virtue of residence in their territory. It does so by determining which institution will bear the costs of the benefits in kind provided by those States in accordance with rules identical to those which apply, pursuant to Article 28 of the regulation, in the case of Member States which do not confer such a right (see, to that effect, Rundgren, paragraph 45).

46As the Court has already held, under those rules, the institution of the place of residence provides the benefits in kind to the pensioners on behalf and at the expense of the institution of one of the Member States with jurisdiction in respect of pensions (see Rundgren, paragraph 45, and van Delft and Others, paragraph 39).

47The result is that the system put in place by Articles 27, 28 and 28a of Regulation No 1408/71 establishes a connection between the jurisdiction to provide pensions and the obligation to bear the cost of benefits in kind in respect of sickness and maternity, since that obligation is incidental to actual jurisdiction in respect of pensions (see Rundgren, paragraph 47).

48As the Advocate General has essentially found in paragraphs 48 to 51 of his Opinion, such a system is capable of preventing, pursuant to the aim of Article 28a of Regulation No 1408/71, as noted in paragraph 45 above, Member States whose legislation confers a right to receive benefits in respect of sickness and maternity from being penalised merely by virtue of residence in their territory.

49Thus, the ‘legislation’ to which the pensioner has been subject for the longest period of time, referred to in Article 28(2)(b) of Regulation No 1408/71, is that relating to pensions.

50Consequently, where the persons concerned are, as in the case in the main proceedings, entitled to draw pensions in accordance with the legislation of several Member States and they reside in another Member State in which they have no entitlement to benefits in kind in respect of sickness and maternity, the responsibility for payment of those benefits falls, in accordance with that provision, on the Member State with jurisdiction in respect of pensions to whose legislation those persons have been subject for the longest period of time.

51That interpretation is corroborated by Article 33 of Regulation No 1408/71, in that it is precisely that provision which authorises the Member State responsible for payment of a pension and which applies legislation providing for deductions from pensions to cover sickness and maternity benefits to make such deductions from the pension payable by it, where it is responsible for payment of those benefits in the pensioner’s State of residence, pursuant to Article 27, 28, and 28a of that regulation.

52That interpretation is also confirmed by Article 95 of Regulation No 574/72, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1223/98, from which it is clear that, in accordance with Article 36 of Regulation No 1408/71, benefits in kind in respect of sickness and maternity paid to pensioners in their State of residence are, in any event, reimbursed by the Member State responsible for payment of the pension, which thus bears the essential risk linked to the provision of sickness benefits in kind in the Member State in which the pensioner resides (see, to that effect, van der Duin and ANOZ Zorgverzekeringen, paragraph 44, and van Delft and Others, paragraph 79).

53In the grounds for its decision, the referring court also asks whether only compulsory periods of insurance and those which have given rise to the payment of contributions must be taken into account when applying Article 28(2)(b) of Regulation No 1408/71, thus excluding optional periods of insurance and those which did not give rise to the payment of any contribution.

54However, it is not apparent for any of the information submitted to the Court that an answer to that question would, as confirmed by both Mr van der Helder, the Netherlands Government and the Commission at the hearing in response to a question put by the Court, have any bearing on the determination, in the main proceedings, of the Member State which is responsible for payment of the benefits at issue, since the legislation concerning pensions to which the applicants in the main proceedings have been subject for the longest period of time is, in any event, the Netherlands legislation.

55In those circumstances, since the question is hypothetical, the Court is not required to answer it (see, to that effect, Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-5667, paragraph 27).

56Therefore, the answer to the question referred is that Article 28(2)(b) of Regulation No 1408/71 must be interpreted as meaning that ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purposes of that provision, refers to legislation concerning pensions.

Costs

57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Third Chamber) hereby rules: Article 28(2)(b) of Regulation (EEC) No 1408/71 of the Council 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that ‘legislation’ to which the pensioner has been subject for the longest period of time, for the purpose of that provision, refers to legislation concerning pensions.