The Dutch government is, over the last two years, tenaciously suggesting that an emigrant with a (legal?) pension from the Netherlands, who resides in another EU/EER country, is (still) healthcare-insured under Dutch law.
This is blatantly untrue. The Dutch private insurance system, made mandatory by the Zorgverzekeringswet since 2006, is restricted to people who reside or work in the Netherlands. That’s the law of the Netherlands, and this law cannot be amended by Annexes to EU-regulations, or by the handing out of E-121 forms to the contrary.

Whether a migrant with a legal pension from the Netherlands is, in his Country of Residence (CR), entitled to so-called social (legal) health care is a matter of CR-law only. A migrant without such CR-entitlement but fulfilling the other conditions of article 28, section 1 of Regulation 1408/71 may nevertheless have a regulation-based title to the CR-benefits but, even so, there is no way in which the costs have to be borne, under article 28, section 2, by the Netherlands as the Pensioning Country (PC).
Emigrated persons with a pension from the Netherlands simply are not entitled to any health care benefits under Dutch law, and thus the Netherlands as PC does not fulfil the clear precondition of article 28,2.
In fact, in the mirror-like case of a person with a German pension living in the Netherlands, the highest administrative court of the Netherlands has very decisively ruled to this effect (ABRS 200607646, April 14, 2007).

There simply is no way for the Netherlands to deliver valid E-121 forms and to make use of the authorization, given in article 33, section 1 of the Regulation 1408/71, to withhold payments from the pensions of emigrants, let alone on a compulsory basis.
Any suggestion that the Netherlands has the sovereign authority to regulate upon a system of levies from emigrated pensioners contrary to article 33,1 or exceeding its limits is, in reality, self defeating. The issue is not the legislative power of the Netherlands (being the PC) as such, but the plain fact that according to article 13, section 2f of the Regulation mentioned earlier, any migrant pensioner “shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone”.

Up to now these simple and basic truths have been ignored by both the European Commission and the Dutch administrative courts.

QUESTION: does the existing state practice, initiated by the Netherlands through its commitments vis-à-vis CR’s to foot the bill for health care-benefits provided to immigrants with a pension from the Netherlands, change the legal status of the compulsory levies of article 69 of the Zorgverzekeringswet?

Bilateral understandings between the Netherlands and CR’s do not constitute the regulation-based title for CR-benefits of article 28, section 1 (erroneously called ‘verdragsrecht’ =treaty based entitlement by the Dutch authorities), nor do they in any way create a foreign (Dutch) title.

This practice constitutes nothing else but a practical solution and pensioners who decide to make use of these arrangements may very well be willing to pay contributions to the Netherlands in return.
Then again it is also an open invitation to Countries of Residence to treat Dutch pensioners differently from anyone else, i.e. by flatly denying them registration without an E-121, regardless of their own laws and regardless of the way they treat immigrants with a pension from other countries.

Handing in a E-121 makes the Dutch pensioner liable to pay the Dutch levies and the Netherlands takes this even one step further. At this moment in time the residence in a different EU/EER country per se seems to be the clincher, the Dutch authorities delivering E-121’s on their own initiative.
This practice has two unjustifiable effects:
1. pensioners have to pay the levies even when they do not (as they are free to) make any use of the CR’s legal system of health care, causing no costs whatsoever to the Netherlands;
2. whether they make use of the CR-system or not they are, in many countries, liable to pay for the legal system like anybody else, especially if the CR-care is being financed out of taxes only. In such a case today’s state practice results in pensioners to pay twice, once through the taxes in their CR and again through the Dutch levies, even if they do not make use of the CR’s legal system at all, being privately insured at their own cost!

Relevant as these pros and cons may or may not be, they cannot change the basic fact that any PC-system can only be based upon the free consent of the pensioners involved. Article 13,2f, deprives any compulsory system based on PC-legislation, of its binding effects on emigrated pensioners who are residents of another EU/EER-state.
The new Regulation 883/2004, as it stands today, does the same (article 11,3e).

Auteur: Dr.Huub Frantzen