Dutch spouse of German diplomat: no insurance under AOW pension scheme
The Dutch Supreme Court recently ruled on the duty to insure under the Dutch AOW pension scheme for a Dutch resident who was married to a German diplomat. Following his appointment at the German embassy in the Netherlands, she was not insured under this Act.
22 February 2017
Duty to insure
A German diplomat lived in Germany with his Dutch spouse for quite some time. Following his appointment at the German embassy in The Hague, he relocated to the Netherlands with his spouse. His spouse requested the Dutch Social Insurance Bank (SVB) to send her a pension statement indicating during which period she had been insured under the AOW pension scheme in the Netherlands. She had been living in the Netherlands for a considerable time before she moved to Germany. The SVB informed her she was not insured under the AOW pension scheme in the period her spouse was appointed at the German embassy in The Hague.
Decree extension and limitation insured people social insurances
The Dutch Access to National Insurance (Additional Categories of Persons) Decree 1999 (Besluit uitbreiding en beperking kring verzekerden volksverzekeringen) provides that diplomats and their family members who are sent to the Netherlands by another state, are not insured for national insurance purposes in the Netherlands. This provision is based on the Vienna Convention on Diplomatic Relations, which also stipulates that diplomats are exempt from social security regulations in the receiving state. Diplomats have a special position as representatives of the state that sends them. The rationale behind this provision is that the sending state remains responsible for their social security position. Based on the same rationale, the said Decree also states that diplomats (and their family members) who are sent to another state by the Netherlands, remain insured under the Dutch national insurance schemes.
However, the spouse argues that this provision does not apply to her because she has Dutch nationality. After all, the Convention of Vienna excludes family members who are citizens of the receiving state from the exemption; this exception should also apply for national legislation. On top of that, she argues that she is discriminated against compared with other Dutch residents.
AG Wattel came to the conclusion that our national legislation alone determines whether Dutch family members are insured under the national insurance schemes. Based on the Access to National Insurance (Additional Categories of Persons) Decree 1999, that is not the case, period. The AG further argues that the comparison with Dutch citizens who are not married to an appointed diplomate is not valid. Given the internationally accepted principle that the sending state is responsible for their social security, and the fact that the Netherlands in a reverse situation also insures the family members of posted diplomats, there is no unequal treatment of equal cases.
The Supreme Court follows the AG’s conclusion and dismissed the appeal in cassation. Although she lived in the Netherlands, the Dutch spouse was not insured under the AOW pension scheme. In that respect she was treated the same as her spouse, who was not insured in the Netherlands either.
Source: HR February 10, 2017, no. 16/02824, ECLI:NL:HR:2017:184