C-8/75

ASSOCIATIOn DU DU FOOT-BALL CLUB D'ANDLAU

on the interpretation of certain provisions of Regulations Nos 3 and 4 of the Council determining the legislation applicable,

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart (Presidents of Chambers), A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges,

Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

I — Facts and written procedure legislation of that Member State in whose territory they have their permanent 1. In order to provide music for three residence.' dances organized by it on 14 February, 11 April and 17 May 1970, the Article 11 (2) (as amended) of Associadon du Foot-ball Club d'Andlau Regulation No 4 (hereinafter referred to as 'the Association") called upon the services of a 'Where, by virtue of Article 13 (b) or (c) band composed of five musicians of of the Regulation, German legislation is German nationality, ordinarily resident applicable to a worker whose employer is in the Federal Republic of Germany. not located within the territory of the Andlau is a commune situated in the Federal Republic of Germany, that Departement of Bas-Rhin. The musician legislation shall be applied as if that responsible for the leadership of the worker were employed in the place of his group was affiliated to a recognized permanent residence.' private fund, called 'Kaufmannische Krankenkasse Halle' in Freiburg. The Caisse appealed against this decision, chiefly on the ground that it The Caisse Primaire d'Assurance Maladie misrepresented the scope of the second de Sélestat (hereinafter referred to as 'the and third sentences of the said Article 13 Caisse") considered that the German (1) (c) of Regulation No 3 according to musicians should have been subject to which: the general French scheme which provides for the compulsory affiliation to 'If they have no permanent residence in social insurance schemes of public the territory of any of the Member States performers whatever their nationality. It where they, carry on their employment, therefore proceeded to claim payment of they shall be subject to the legislation of the contributions due from the employer that Member State in whose territory the and took out three distraint orders employer(s) or the registered office of the against the association, to which a undertaking(s) employing them is defence was entered. situated. If such workers, having their permanent residence in the territory of a The Commission de Premiere Instance Member State where they carry on no du Contentieux de la Sécurité Sociale du employment, are attached to two or more Bas-Rhin, by a decision of 15 November employers situated in the territory of 1972, annulled these distraint orders on different Member States or to two or the ground that the musicians were not more undertakings having their subject to the French legislation under registered office in the territory of the first sentence of Article 13 (1) (c) (as different Member States, they shall be amended) of Regulation No 3 of the subject to the legislation of the Member Council concerning social security for State in whose territory they have their migrant workers and of Article 11 (2) of permanent residence'. the implementing Regulation No 4. Under these provisions: The Caisse further maintains that the decision fails to take into account the

— if so, whether the application of the 'Public performers ... who are regarded Community regulations has the effect as subject to Articles 29 (s) and 29 (t) of of exempting a French employer the First Book of the Code du Travail from the contributions which would shall be compulsorily affiliated to social normally be due from him to the insurance schemes whatever their French social security institutions in nationality. respect of the employment in France of public performers and of making it The obligations of an employer shall be more advantageous to him to employ assumed in respect of the public German musicians than French performers ... referred to in the previous musicians; subparagraph, by undertakings, insti­ — whether or not, in the case of an tutions, services, associations, groups or accident at work or on the way to or persons who call upon their services, from work, in France, the French even if only occasionally.' social security institutions would not have to pay benefits to German Article 29 (s) of the First Book of musicians. the Code du Travail establishes a presumption of a contract of em­ The Caisse, represented by Mr Claude ployment in respect of the contract Peignot, Advocate at the Conseil d'État engaging an artiste or of a musician and at the Cour de Cassation, the which can only be rebutted by proof that Association, represented by Mr Jean the party concerned is a trader. Applying Guillaume Nicolas, Advocate at the these provisions, the Caisse decided that Conseil d'État and at the Cour de there was a contract of work between the Cassation, and the Commission of the Association and the members of the European Communities, represented by German band and that therefore the said its Legal Adviser Mademoiselle Association was liable to pay the Marie-José Jonczy, acting as Agent, contributions relating to the employment submitted written observations in of these people. The contrary view, accordance with Article 20 of the which was upheld by the Commission de Protocol on the Statute of the Court of Première Instance, would result in a Justice of the EEC. flagrant breach of Regulation No 3 and

the contributions relating to the '1 — the German social security employment of his musicians. legislation is applicable to a German musician, having his The Caisse therefore believes that the permanent residence in Germany, question put by the court making the who is affiliated in the Federal reference requires an affirmative answer Republic of Germany to a social only if the leader of the orchestra and his security institution either as an musicians are affiliated to a German employee or as an independent social security body as an employer and worker and who occasionally as independent workers or as appears as a public performer in wage-earners respectively. The answer to France where such performances the second and third questions is would normally entail his being dependent on the one given to the first subject to the French social question. security system for wage-earners and assimilated workers; 2 — the application ot the Community B — Observations submitted by the regulations has the effect of Association exempting a French employer from the contributions which The Association maintains that since would normally be due from him Community regulations are directly to the French social security applicable in Member States and take institutions in respect of the precedence over national law, any employment in France of public conflict between the regulations and the performers; national law is resolved by the 3 — in the case of an accident at work non-application of the latter. The or on the way to or from work, in Association recalls the text of Article 13 France, the French social security (1) (c) (as amended) of Regulation No 3 institutions do not have to pay and observes that it is clear from the use benefits to German musicians'.

The Commission maintains that the (a) The first question provision of Community law which the Cour de Cassation seeks to have It follows from Articles 12 to 15 of interpreted is mainly Article 13 (1) (c) (as Regulation No 3, especially Article 12, amended) of Regulation No 3. Article 11 that the criterion determining which (2) (as amended) of Regulation No 4 of social security legislation is applicable is the Council contains nothing enabling as a general rule that of the place of work the applicable national legislation to be of the worker, irrespective or the place of determined, but presupposes that this has his permanent residence or where his already been determined by application employer or the registered office of the of Article 13 (1) (b) or (c). In view of this, undertaking which employs him is the questions referred should be read as situated. Nevertheless Article 13 (1) follows: provides certain exceptions to this 1. In order to determine the applicable principle in specific cases where by legislation, must Article 13 (1) (c) (as virtue of the nature of the occupation of amended) of Regulation No 3 of the the worker or of the situation of the Council concerning social security for undertaking it appears unjustifiable or migrant workers be interpreted as impossible to apply such a principle, meaning that the social security especially where the worker carries out legislation of the Member State, in his activity in the territory of more than the territory of which a worker has one Member State. In such a case it is his permanent residence, is either the place of permanent residence applicable to him whether or not he of the worker or the place where the is affiliated in that State to a social employer is situated or where the security institution, either as an registered office of the undertaking is employee or as an independent situated which serves as the criterion for worker, if he occasionally carries out determining the legislation applicable. on the territory of another Member State an activity which would The fact that the musicians also carried normally entail his being subject to out their activity in Germany in this case the social security scheme for is the determining factor which is wage-earners and assimilated workers capable of excluding the application of of the latter State? Article 12 and, in respect of their 2. Does the expression subject to the appearances in France, places these legislation' in the said Article 13 (1) musicians under the provisions of the (c) of Regulation No 3 only refer to first sentence of Article 13 (1) (c). the right to benefits, or all the Nevertheless Article 13 (1) (c) provides conditions giving rise to acquisition that for the purposes of its application of the right to benefits, including the insured: contributions? — shall be a salaried worker or

wage-earners or assimilated workers. If these musicians therefore are subject to Therefore the musicians cannot claim the German legislation by virtue of the applicability of German legislation in Article 13 (1) (c) it would follow that the respect of their appearances in France Association as employer is obliged to pay unless in Germany they are subject to the contributions due by applying the legislation covering wage-earners or German legislation. assimilated workers. Whilst it is quite clear from the facts submitted that the (c) The third question leader of the orchestra is affiliated to a recognized German private fund this The answer to the question regarding nevertheless does not enable the position accidents at work is to be found in of the parties in respect of the German Article 29 of Regulation No 3 especially social security legislation to be paragraphs (1) and (7) from which it determined. follows that in case of an accident at work which occurs in France the As to the second condition, on the German musicians subject to German assumption that it is not complied with legislation shall be entitled to receive, 'at in this case, the provisions applicable are the expense of the German institution', those of Article 13 (1) (a) which require benefits in kind provided for by the inter alia that the employee temporarily French legislation and the cash benefits working in the territory of another provided by the German legislation. Member State should there carry out his activity on behalf of the undertaking or On the other hand, as regards accidents the employer to which he is normally on the way to or from work it follows, in

To distinguish between the would still not result in the leader of the two parts of the journey, when the band himself being subject to the general legislation applicable under the French scheme. regulations is not that of the country where the worker is employed, would indeed be contrary to the spirit of (b) The second question Regulation No 3. It follows therefore that the German legislation remains The interpretation put forward by the applicable, in cases of accidents on the Caisse finds no legal support in the text way to or from work which occur in of the various provisions of Head II of France, where by virtue of the Regulation No 3 nor in the other Community regulations, the worker is provisions of the same regulation. The subject to this legislation. term 'legislation' is defined in Article 1 (b) which contains no limitation of this On the basis of these observations

JUDGMENT OF 24. 6. 1975 — CASE 8/75

which a worker has his permanent victim of an accident at work in the residence is only applicable to him territory of another Member State under the first sentence of Article 13 where he carries out part of his work, (1) (c) (as amended) of Regulation No shall, at the expense of the 3, if he also works in the territory of competent institution of the first a Member State other than that of Member State, in accordance with his permanent residence and if he is Article 29 (1) and (7) of Regulation regarded as a wage-earner or No 3, receive the benefits in kind assimilated worker in the State of his provided for by the legislation of the permanent residence, and if he second State, and the cash benefits works in the territory of the other provided by the legislation applied Member State habitually rather than by the competent institution. An occasionally. accident on the way to or from work which, occurs in the territory of a 2. The expression "subject to the Member State other than the legislation" in the first sentence of competent Member State shall be the said Article 13 (1) (c) of considered as occurring in the Regulation No 3 not only implies territory of the competent State.' the right to benefits provided by the legislation of the Member State concerned, but also all the III — Oral procedure obligations which this social security legislation imposes in the same The Caisse Primaire d'Assurance Maladie circumstances on nationals of this de Sélestat and the Commission of the State. European Communities submitted their 3. A wage-earner or assimilated worker oral observations at the hearing on 15 who is subject to the legislation of a May 1975. Member State by virtue of the first sentence of the said Article 13 (1) (c) The Advocate-General delivered his of Regulation No 3 and who is the opinion at the hearing on 10 June 1975.

4 Article 12 (1) (as amended) of Regulation No 3 provides: 'Wage-earners or assimilated workers employed in the territory of one Member State shall be subject to the legislation of that State even if... their employer or the registered office of the undertaking which employs them is situated in the territory of another Member State.'

5 Article 13 (1) of the same regulation provides some exceptions to this principle, particularly in cases where, by reason of the place where the registered office of the undertaking or his employer is situated, it is impossible or unjustifiable to subject the worker to the legislation of the State where he is working temporarily.

6 The first sentence of Article 13 (1) (c) (as amended) provides that: 'Wage-earners and assimilated workers ... who normally work in the territory of more than one Member State, shall be subject to the legislation of the Member State in the territory of which they have their permanent residence.'

7 This provision is mainly aimed at avoiding the overlapping of several national systems of legislation where a worker who is affiliated to the social security scheme of the Member State where he is permanently resident, travels temporarily in other Member States by reason of his work, whilst not changing his permanent residence.

8 Therefore a prerequisite for the application of this provision is that the worker is affiliated to a social security institution in the State where he has his permanent residence.

JUDGMENT OF 24.6.1975 - CASE 8/75

13 Article 8 of Regulation No 3 provides that: 'Persons permanently resident in the territory of any Member State to whom this Regulation applies shall have the same rights and obligations under the social security legislation of every other Member State as the latter's nationals.'

14 Thus it follows from the answer given to the first question that the social security relationships in question are governed by the legislation of the State

CAISSE PRIMAIRE D'ASSURANCE MALADIE SÉLESTAT v FOOT-BALL CLUB D'ANDLAU

where the worker has his permanent residence if he is affiliated to a social security institution of that State.

15 Therefore the obligation to pay the contributions which are laid down by the social security legislation is also applicable to an employer established in another Member State on the territory of which the worker is temporarily employed.

16 In such a case Article 51 of this regulation provides for the recovery of contributions due to an institution of one Member State and lays down the general conditions under which this recovery may be made on the territory of the State where the worker is employed.

JUDGMENT OF 24.6. 1975 — CASE 8/75

22 In the case of a wage-earner or assimilated worker subject to the legislation of the State where he has his permanent residence who occasionally is employed in another Member State, the 'competent country' for the purposes of these provisions is the State of his permanent residence, and the 'competent institution' is that of the same State.

23 Thus the answer should be that in the case of an accident at work, including an accident on the way to or from work, which happens to a wage-earner or assimilated worker subject to the legislation of the State where he has his permanent residence, who is occasionally employed on the territory of another Member State, the social security institution of the latter State, as the institution of the place where the worker is, is only obliged, under Article 29 (1) of Regulation No 3, should the occasion arise, to issue the benefits in kind provided by its own legislation at the expense of the institution of the competent State.

Costs

24 The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

25 As these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 24 June 1975.

A. Van Houtte R. Lecourt

Registrar President