C-13/73

Willy HAKENBERG­ , living in Paris,

on the interpretation of Articles 1, 12 and 13 of Regulation No 3 of the

Council concerning social security for migrant workers,

THE COURT

composed of: R. Lecourt, President, R. Monaco and P.Pescatore (Rapporteur), Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, C. Ó Dálaigh and M. SØrensen, Judges,

Advocate-General: A. Trabucchi Registrar: A. Van Houtte

France, has been acting in the German Mr Hakenberg's activities consist, in Federal Republic as a representative for particular, in visiting customers among several French industrial undertakings German manufacturers and wholesalers

ANGENIEUX v HAKENBERG

in order to sell them mechanical and by a judgment dated 15 November 1967 metal parts for cycles and motor-cycles. appointed an expert to draw up a report For this purpose he tours Germany on the nature of Mr Hakenberg's canvassing business for almost nine activities and of the conditions of his months in the year during which time he employment.

sociale'

for Paris area, by a decision the security,

dated 3 November 1964, refused to 1. to the expression 'employed' in allow the application for the dual reason Article 12 of Regulation No 3 and

that Mr Hakenberg was not a until it shall have decided wage-earner and that he carried on his (a) whether a representative who for work in Germany. nine months in the year tours a Mr Hakenberg contested this decision busi­ Member State canvassing on 8 January 1965 before the ness, but whose activities extend 'Commission de première instance du into the territory of another contentieux de la sécurité sociale et de la Member State, in which are mutualité sociale agricole de Paris'. situated the registered offices of

By judgment dated 16 June 1965 the the undertakings which employ Commission decided that Mr Hakenberg him and with which he returns to must be made subject to the general make contact outside the time he social security scheme. spends canvassing business, must The Caisse primaire lodged an appeal be regarded as pursuing his against this decision on 26 July 1965. activities in the territory of such

Member States or solely in the The Cour d'appel of Paris, by judgments dated 22 April territory of the first mentioned February 1967, and 18 ordered firms, who had been or were 21 State; then employers of Mr Hakenberg, to be (b) whether the fact that a person is joined as parties to the action, and then principally employed in the

in the Etablissements D. and 15 office territory of another (the plaintiffs in the Member State, for successive periods other companies,

of 9 months, alternating with periods main action), Mr Hakenberg (the

of 3 months in the latter state, must defendant in the main action), and of the

be Commission were heard in open court regarded as falling within the

Article 13 on 4 July 1973. scope of the said (a); In the proceedings before the Court, 3. to the provisions Article 1 (h) of of 'Anciens Etablissements D. Angenieux'

the said Regulation No 3 under in and 15 other companies, the plaintiffs 'permanent residence'

worker only has a permanent II — Observations submit­

residence in the Member State in ted to the Court

which he has a definite address to

which he returns in the intervals The written and oral observations

between his tours and in which the submitted to the Court may be registered offices of the undertakings summarised as follows: which employ him are situated. 'Anciens Etablissements D. Angenieux fils ainé' and 15 other companies, the The judgment of the Cour de Cassation plaintiffs in the main action, stress the was registered at the Court Registry on fact that the first two questions referred 21 February 1973. by the Cour de Cassation relate to the In accordance with the provisions of situation existing before Regulation No Article 20 of the Protocol on the Statute 3 was amended by Regulation No 24/64, of the Court of Justice of the EEC, whereas the third question relates to written observations were filed by the Regulation No 3 as amended. Commission of the European Communi­

ties on 14 May 1973, by the 'Caisse (a) As regards the first question, it primaire centrale d'assurance maladie de should be pointed out first of all that

worker simultaneously employed in the Moreover, the very idea of an 'extension'

territories of two Member States. The of activities into French territory implies former Article 12 would lead to the joint that the activities of the person

application of the social welfare concerned do indeed take place in legislations of France and Germany. The Germany where he must therefore be previous decisions of the Court regarded as 'employed' within the (judgment 92/63, Nonnenmacher, 9 meaning of Article 12 of Regulation No 3. of

June 1964, Rec. 1964, p. 557; judgment In any event it is undeniable that Mr 19/67, Van der Vecht, of 5 December his Hakenberg carries on principal 1967, Rec. 1967, p. 445) do not exclude in employment the territory of the the simultaneous application of different Federal Republic and this is sufficient for legislations, provided that it does not the purpose of ascertaining whether involve workers or their employers in an Article 12 applies, since he fulfils the increase in charges which does not other conditions which this requires. produce a corresponding addition to

social welfare protection. Now, such (b) Article 13 (a) of Regulation No 3, in would be the situation in this case if the its original version, involves a derogation legislations of France and Germany were from the general principle laid down by jointly applied. It is therefore necessary Article 12; it determines the scope and

to seek some criterion ascertaining which effect of this derogation and, like all

concerned has a permanent residence in former paragraph (a) of Article 13, to

France, since the only question which admit that successive periods of nine

arises is to know whether he is months in each year in another Member 'employed' in Germany. The decisive State may be deemed to be a period of criterion adopted by Article 12, apart residence of 12 months, particularly from any concept of permanent since the text expressly provides that the residence or permanent address, is the said period of 12 months may only be worker's physical presence at his place renewed once at the most, and that with

JUDGMENT OF 12. 7. 1973 — CASE 13/73

the consent of the competent authority year, in the territory of a Member of the latter State or the agency State, cannot benefit from the

designated by it. exception provided by the former paragraph (a) of Article 13 of (c) It is necessary to interpret Article Regulation No 3 which lays down, 1 (h) of Regulation No 3 in order to for the purposes of the application of assess the scope and purport of Article that exception, a maximum period of 13 (1) (c), as by Regulation re-drawn employment of 12 months; No 24/64. Mr Hakenberg cannot take advantage of the exception which this 3. it is sufficient, in order that there

context of Regulation No 3, the idea of takes, i.e. whether it be fixed or not.

residence is not to be understood as a The observations of the 'Caisse primaire concept of national law, but is to be centrale d'assurance maladie de la region regarded as a criterion for solving a parisien e', the plaintiff in the main conflict of international law; it action, are essentially as follows: determines, inter alia, the national

legislation applicable to a given situation (a) In Article 12 of Regulation No 3 of fact. the expression '(workers) employed in State' the territory of one Member The decisive factor, in this respect, is the stands in contrast to the expression 'even finding that Mr Hakenberg more often if they permanently reside in the than not resides in Germany, his periods territory of another Member State'. Thus of residence never being less than nine or ten months a year; the effective centre of the place where the worker pursues his

his is in working activities on behalf of the working activity established

Germany. Hence the place where he undertaking which employs him, is decisive for the purposes of the habitually resides and, consequently, his application of Article 12. Although a permanent residence within the meaning

Article 1 Regulation No 3 is indeed business representative must periodically of of

Cour de Cassation might be as follows: the registered offices of the undertakings

employing him are situated, of necessity 1. a representative who, owing to the implies that the activities of the exigencies of canvassing business, representative are in the in territory resides for nine months a year in a which he is canvassing business and in Member State, must be regarded as 'employed' which he must therefore be regarded as in the territory of that 'employed' within the meaning of Article State, within the meaning of Article 12 of Regulation No 3. 12 of Regulation No 3; 'extension' This of the representative's

2. a representative who has been activity is not an ancillary employment; employed for a large number of years, it forms part of his usual working to the extent of nine months each activities and governs the manner in

ANGENIEUX v HAKENBERG

which they are carried out. The wording Furthermore, such a representive does of Article 12, moreover, makes no not need to seek permission every year, reservations and does not insist upon and in fact has never done so, for an

exclusive employment; on any view, it is extension which on any view could only the principal activity which results in be granted to him for a further period of affiliation to the scheme and which not more than 12 months. defines the nature of such affiliation, Article 13 before it (a), as worded was

former Article 13: it habitually resides. paragraph (a) of

concerns wage earners who are employed A person who lives, dwells and works in in the Member State a certain country for at least nine territory of a other

than that in months in the year by definition which they are permanently in habitually resides in that country. The resident and which the establishment

to which they are attached is situated, question causes no difficulty where that for initial 12 person lives and works in a fixed place. a temporary period of

months which can be continued for a Must a representative who is required by further period of not more than 12 the nature of his work to travel about

months; on the other hand, it does not the country in which he is staying, be apply to a representative whose area of regarded for that reason alone as having activity has for several years regularly no permanent residence? It should be and continuously been in a Member noted that he is not permanently resident State other than that in which he is in his country of origin, since, as distinct permanently resident and in which the from domicile, which is a legal concept, registered office of the undertaking residence is a purely factual concept

consists of canvassing business in the merely of a fixed abode; that definition territoryof the Member State in which would apply to any manner of residence

he is employed, that State being his usual and especially to living in a caravan if area of activity; his interest and that of this is permanent in nature and is related his employer is to maintain this activity to the representative's work, if this is for as long as possible in that area. continuous in character.

JUDGMENT OF 12. 7. 1973 — CASE 13/73

A representative, who habitually and for grounds that he had had a series of

an indefinite time lives for at least nine temporary postings. months a year in a Member State in which he travels canvassing business, has (c) Regulation No 3 seeks to avoid any his permanent residence in that state unnecessary plurality or overlapping of

within the meaning of Article 1 (h) of charges and liabilities resulting from a

to them there. determining the legislation which applies to Mr Hakenberg was governed by two

(a) Mr Hakenberg's activities are of succeeding instruments: from 1950 to

one kind only. The two aspects, i.e. the 1959 by Article 3 of the General administrative and commercial, of the Convention between France and the

manner in which these activities are Federal Republic of Germany on social

pursued are closely dependent upon each security and, from 1959 to 1964, by other: the activities are pursued in Articles 12 and 13 of Regulation No 3. France as well as in Germany. For the purpose of seeking the criterion

for determining the legislation to be (b) In view of the wider scope and applied, these two instruments, by effect of Article 13 (a) of Regulation No the criterion of adopting employment, 3 before it was amended by Regulation establish the principle of the application No 24/64, one can quite properly regard of the legislation operative in the place

Hakenberg is attached are situated in exceptions to this principle, which must

France, whereas he himself is habitually be strictly interpreted, cannot dictate the employed nine months a year, every solution of the present case.

year, in Germany. The second exception, This solution doubtless presents certain workers with transport difficulties but concerning technical legally there is undertakings, and the third, which is compatible with no other solution that applies to wage-earners or assimilated instruments before the as they stood workers employed in undertakings or 1965. establishments lying astride the common The Commission states that the question frontier of two countries, are irrelevant whether Mr Hakenberg must, for the to the present case. purposes of the French Social security The legislation to be applied to Mr be deemed to be regulations, a

Hakenberg must therefore be determined wage-earner, has been decided by the to the principle that the according French courts within the limits of their legislation applicable is that of the place be jurisdiction; there remains to of employment, as successively laid determined what provisions have applied down by the Convention between France or apply to him, in view of his activities.

and Germany and Article 12 of In this connection three periods in Mr Regulation No 3. Strict observance of Hakenberg's career should be distin­ this rule would lead to the application of guished. German legislation for nine months and

French legislation for three months, (a) From 1950 to 1 January 1959, the which would be contrary to the date on which Regulation No 3 came

This criterion is also adopted by Article 13. 14 (1) (c) (i) of Regulation No 1408/71 As regards the period from 1 January of the Council of 14 June 1971 on the 1959 to 1 April 1964, the date of the

application of social security schemes to entry into force of Regulation No 24/64 employed persons and their families which amended Article 13, the question

moving within the Community (OJ L arises whether Article 12 of Regulation 149, p 2) which replaced Regulation No No 3 applied to Mr Hakenberg. It is 3 as from 1 October 1972. therefore important to establish whether

Having regard to the period involved in a business representative whose working the present case, only the Convention activities are pursued for nine months in between France and the Federal the year solely in the territory of a

Republic of Germany of 1950 and Member State and who for the three

Article 13 of Regulation No 3 as it remaining months of the year is in

his customers, and the contacts which he defines them, is therefore to be sought in makes with the latter are only of value the context of Article 13 (1) (c). It would by virtue of the connections which bind be difficult to interpret the phrase

him to the former. What is concerned is 'habitually resides'

in a way which would not a question of activities of a different be applicable to everyone covered by nature, but rather of different, Regulation No 3. The determination of

inseparable aspects of the same activity. habitual residence is a question of fact It must also be borne in mind in the and leads to different results in different present case, that the representative cases.

pursues his activities in the territories of In Article 13 (1) (c) the term 'permanent two Member States. Furthermore there is have residence'

must the same meaning nothing in Article 12 which justifies the for the three cases laid down in that conclusion that a person's principal provision. The second and third cases employment is sufficient as a criterion refer to the situation of a worker who for determining the legislation to be does not have his permanent residence in applied. the territory of a Member State in which Since Article 12 does not cover Mr he pursues his activities. Accordingly, in Hakenberg's situation, it may be the case of a business representative, thought, particularly if reference is made lenght of time should not be taken as the to the Court's judgment in Case 19/67 criterion for determining habitual (Van der Vecht) and in view of the fact residence. To do so would in most cases

of Article 13 (a) in its original version; place where a worker has his permanent hence it is not impossible to see in Mr address and where he habitually returns Hakenberg's activities a series of at comparatively infrequent intervals. temporary postings. For the purposes of Article 13 (1) (c) the Member State in the territory of which

(c) The third question raised by the the worker has his permanent residence

Cour de Cassation relates to the third is the one to which he habitually returns period of Mr Hakenberg's career, i.e. at comparatively frequent intervals, from 1 April 1964. Since that date, between periods of work in the

ANGENIEUX v HAKENBERG

territories of other Member States and Article 13 (1) (c) of Regulation possibly during his activities in the No 3. territory of that State in which, too, his (b) The answer to this question is in interests, other than those connected the negative. with his work, are centred.

situated the registered offices of he returns at comparatively frequent the undertakings which employ intervals on a habitual basis between him and with which he returns to periods of activity in the territories of

make contact outside the time he other Member States and, possibly, spends canvassing business, must during his activitites in the territory be regarded as pursuing his of that State, and in which his activitites in the territories of such interests, other than those connected States within the meaning of with his work, are centred.

Grounds of judgment

1 By a judgment dated 1 February 1973 entered in the Court Registry on 21 February, the 'chambre of the Cour de Cassation of France referred, sociale'

under Article 177 of the EEC Treaty, questions relating to the interpretation of Articles 1 (h), 12 and 13 of Regulation No 3 of 25 September 1958

concerning social security for migrant workers (OJ p. 561) as amended, so far as the last of these provisions is concerned, by Regulation No 24/64 of 10 March 1964 (OJ p. 746/64), in order to determine the special situation in

of the year being used for the purpose of contacting, on French territory, the undertakings which he represents.

3 It is not contested in the national court before which the dispute was brought that the party concerned, the defendant in the main action, although not in a

subordinate relationship to the undertakings which he represents, must be 'assimilated' regarded as to wage-earners within the meaning of Regulation No. 3 because he pursues an occupation which, under the French social

security Code, is subject to the general social security scheme.

4 The matter of the affiliation of the defendant in the main action to this

scheme is only in dispute owing to special circumstances under which he divides the pursuit of his occupation between the territories of two Member States.

system resulting from the amendment effected by the said Regulation.

ANGENIEUX v HAKENBERG

As to the first and second questions (system

existing before Regulation No 24/64)

'employed' 7 In the first question an interpretation is sought of the term in Article 12 of the Regulation No 3 in order to determine whether

(a) a business representative who for nine months in the year continuously tours Member State canvassing business but whose activities extend a

represented fulfils the criteria of the said provision and more particularly that of 'a duration of employment of 12 months'.

9 Article 12 of Regulation No 3 provides that 'wage-earners or assimilated

workers employed in the territory of one Member State shall be subject to the legislation of that State even if they permanently reside in the territory of

another Member State or if their employer or the registered office of the

undertaking which employs them is situated in the territory of another;

Member State'.

JUDGMENT OF. 12. 7. 1973 — CASE 13/73

Member State and who are employed in the territory of another Member

State by an undertaking having in the territory of the former State an

establishment to which they are normally attached, shall be subject to the

legislation of the former State as though they were employed in its territory, in so far as the probable duration of their employment in the territory of the latter State does not exceed 12 months; which period could be extended once

only for a further period of 12 months with the consent of the competent

situation of business representatives who are not paid a wage or salary.

14 In particular, the strict time limits laid down by former paragraph (a) of

Article 13 are not compatible with working activities which involve making regular business-canvassing tours in the territory of a Member State, in the interests of undertakings situated in another Member State.

15 Since it could not be brought within any of the situations referred to in former Article 13, the occupation in question was covered solely by the

general principle laid down by Article 12 of Regulation No 3 before the

amendment made by Regulation No 24/64.

employment, assuming that such employment is normally confined to the

territory of one and the same Member State.

19 In order to safeguard, given the state of Community legislation at the time in

question, the principle that one legislation must apply to an employment

which, although of a consistent and continuous nature, extend over the

territories of several Member States and comes within the application of

22 Thus the answer to the first question must be that a business representative

pursuing his working activities in the circumstances mentioned in the order referring the questions must be regarded as being employed in the territories of the two States concerned, the predominating employment, however, for the purposes of determining the legislation to be applied, being that on the

territory of the State in which the registered offices of the undertakings which he represents are situated.

As to the third question (system existing

subsequently to Regulation No 24/64

23 The third question asks for a definition of the term 'permanent residence'

intervals between his tours, to a fixed permanent address and where the

registered offices of the undertakings which employ him are also situated.

24 It apparent from the order referring the questions that this question is

raised by reason of the amendment made by Regulation No 24/64 to Article 13 of Regulation No 3 for the purpose of distinguishing and defining the

derogations from the principle laid down in Article 12.

25 For this purpose, it must be pointed out in particular that Regulation No

27 In these circumstances the third question refers to the interpretation in relation to the special type of employment in issue of the concept of

permanent residence in Article 13 (1) (c) — first section — in view of the

definition which it is given in Article 1 (h) of Regulation No 3.

28 When a worker pursues his working activities in the territories of several

Member States, Article 13 (1) (c) (first section), in order to avoid the

simultaneous application of several legislations, gives preference to the

31 On the other hand, the possession of a permanent address in a Member State

is, in such a case, to be regarded as a stabilizing factor which can determine permanent residence within the meaning of Article 13 (1) (c) (first section) and there is all the more reason for so regarding it when the permanent

address is in the territory of the Member State of which the business representative is a national and in which his interests are centred.

32 The answer to the question must therefore be that by 'permanent residence', in the sense in which this term is used in Article 13 (1) (c) (first section) and

more extensively defined in Article 1 (h) of Regulation No 3, there must be understood, in the case of a business representative pursuing the kind of activities described in the order of reference of a preliminary ruling, the place in which that worker has established the permanent centre of his interests and

to which he returns in the intervals between his tours.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the plaintiff and defendant in the main action and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General;

JUDGMENT OF 12. 7. 1973 — CASE 13/73

Having regard to the Treaty establishing the European Economic

Community, especially Article 177; Having regard to Regulation No 3 of the Council concerning social security for migrant workers, especially Articles 1 (h) 12 and 13;

Having regard to Regulation No 24/64 of the Council of 10 March 1964

in answer to it by the 'chambre Cour sociale'

the questions referred to of the

de Cassation of France by order of that court dated 1 February 1973. Hereby rules:

1. A business representative, covered by Regulation No 3 concerning socialsecurity for migrant workers by virtue of national legislation, who for part of the year continously tours the territory of a Member

State canvassing business, but whose activities extend into the

territory of another Member State in which are situated the registered

3. By 'permanent residence', in the sense in which that term is used in Article 13 (1) (c) (first section) of Regulation No 3, as amended by Regulation No 24/64, and defined by Article 1 (h) of the same

ANGENIEUX v HAKENBERG'

Regulation, there must be understood, in the case of a business representative pursuing the kind of working activities above

described, the place in which he has established the permanent centre of his interests and to which he returns in the intervals between his tours.

Lecourt Monaco Pescatore

Donner Mertens de Wilmars Ó Dalaigh Sørensen

Members of the Court, Appeal has decided, or whether, concurrently or exclusively, other

legislations apply. In this case, as already in many others interpretation the That is the point which the first two concerned with of

of Regulation No 3 on social questions of the French Cour de provisions

for migrant the Cassation are intended to clarify. The security workers, problem facing the national court and object of the third question, however, is simply to submit the same question to on which we are now called upon to examination in the light of the new text give guidance, is that of determining legislation to of Article 13 (c) as embodied in the what apply to the migrant

basis abovementioned Regulation No 24/64/ worker. What, on the of

Regulation No 3, particularly Articles 12 EEC of the Council.