C-237/83

CAISSE PRIMAIRE D'ASSURANCE MALADIE [Local Sickness Insurance Fund] PARIS,

on the interpretation of Regulation N o 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, (Official Journal, English Special Edition 1968 (II), p. 465),

T H E C O U R T (Fifth Chamber),

composed of: Y. Galmot, President of Chamber, O. Due, Ü. Everling, C. Kakouris and R. Joliét, Judges,

Advocate General: C. O. Lenz -Registrar: H . A. Rühl, Principal Administrator

gives the following

The facts of the case, the course of the The refusal was confirmed by the procedure and the observations sub- Commission de Recours Gracieux mitted pursuant to Article 20 of the [Complaints Board of the Caisse] and Protocol on the Statute of the Court of the plaintiff therefore brought the matter Justice of the EEC may be summarized before the Commission de Première as follows: Instance du Contentieux. Considering that a limitation of that kind on the employment of foreign workers was not applicable to workers who were nationals of the European Economic Community, I — Facts and p r o c e d u r e the plaintiff claimed that the refusal was unlawful. It referred in that connection to Regulation No 1612/68 of the Council of 15 October 1968 on freedom The plaintiff in the main proceedings, of movement for workers within the Prodest Sari, is a temporary-employment Community. undertaking governed by French law. With effect from 17 June 1981 it sent Mr van Robaeys, a Belgian national resident Considering that the dispute referred to in France and insured under the French it turns upon the interpretation to be social security scheme, to work tem- given to Regulation No 1612/68, and porarily in Nigeria. in order to determine whether that provision enables the second paragraph of Article 39 of the Law of 3 January The Caisse Primaire d'Assurance 1972 to be disregarded, the Commission Maladie, Paris, rejected an application de Première Instance requested the from the plaintiff in the main Court of Justice, pursuant to Article 177 proceedings for Mr van Robaeys's of the Treaty, to answer the following insurance to be maintained for the question: duration of his period of work abroad. It based its refusal on the second paragraph "May an insured person who is a of Article 39 of the Law of 3 January national of a Member State of the 1972, which became the third paragraph European Economic Community, is of Article L 341-3 of the Code du Travail [Labour Code] which provides as employed by a French company and is follows : resident in France, claim that his insurance under the French general social security scheme should be main- tained for the duration of his posting to "Without prejudice to international Nigeria, by virtue of Regulation N o agreements, no temporary-employment 1612/68 of the Council, and in those undertaking may place foreign workers circumstances is it appropriate to at the disposal of any person whatsoever disregard the restriction contained in the if the service in question is to be second paragraph of Article 39 of the provided outside French territory." Law of 3 January 1972 which has been

I I — Written observations sub- "The provisions of the present title shall, m i t t e d to t h e C o u r t where appropriate, apply without pre- judice to treaties, conventions or agreements duly ratified or approved and published and in particular the treaties According to the defendant, a national of establishing the European Communities a Member State of the European and the measures adopted by the Economic Community may rely upon the Community authorities in implemen- provisions of Community regulations tation thereof." only with respect to work to which he is assigned within another Member State of the Community. In the present case, whilst on the hand the worker in The question remaining to be con- question is indeed a national of one of sidered, which is precisely the question the Member States, he was, on the other with which the present case is concerned, hand, assigned to work not in a Member is therefore whether, in so far as it refers State but in a non-member country. to activities performed outside the

PRODEST v CAISSE PRIMAIRE D'ASSURANCE MALADIE DE PARIS

The Commission then reviews the Community legislation which it considers As regards the specific area of social may be applicable. It concludes that the security, the Commission refers in provisions of Articles 3 (c), 48 (1), (2) particular to the judgments of 8 April and (3), 49 (b) and (c), 52 and 59 of the 1976 (Case 112/75 Hirardin [1976] ECR Treaty appear to favour free access to 553), of 31 March 1977 (Case 87/76 work rather than the freedom to perform Bozzone [1977] ECR 687) and of 11 July work, which is equivalent, in the case of 1980 (Case 150/79 Commission v employed persons, to free access to the Belgium [1980] ECR 2621). Those labour market, regardless of the place decisions confirm, in its opinion, the where the activity is carried out. The tenor of the Walrave judgment cited Commission also examines the regu- above, in particular the fact that the lations and directives relating to freedom applicability of Community law is not in of movement for workers, but observes, any case dependent upon the place in that connection, that as a result of where the activity is performed. divergences of terminology it is not possible to formulate a decisive conclusion regarding determination of From those decisions of the Court, the connecting factor for defining the the Commission infers that legal precise field of application ratione relationships originating within the materiae of the principle of the free territory of the Community fall within

JUDGMENT OF 12. 7. 1984 — CASE 237/83

The Commission also observes that The Commission concludes that the statutory or contractual provisions under principle of equality of treatment applies which a State's own nationals are treated in relation to the free movement of differently from other Community persons where a Community national nationals with regard to the pursuit of residing in a Member State is bound by a an activity in a country outside the contract of employment concluded with Community indisputably have reper- an employer who is a national of the cussions on the employment market host Member State, his situation being within the Community. They are likely, governed, as the defendant shows by for example, to exclude Community referring to the prohibition clause in nationals from certain jobs, thus af- Article L 341, by the legislation of the

PRODEST v CAISSE PRIMAIRE D'ASSURANCE MALADIE DE PARIS

latter State, regardless of the place where equality of treatment, as formulated, his activity as an employed person is with respect to the field of application of carried on (inside or outside the Regulation No 1408/71 aforesaid, in Community). It follows, in the Com- Article 3 thereof. mission's opinion, that the refusal to maintain insurance in this case can in no circumstances be based on the third The Commission refers to the relevant paragraph of Article L 341-3 of the French legislation, namely Article L 768 Labour Code. and L 769 of the Code de la Sécurité Sociale [French Social Security Code], which provides as follows:

The Commission points out that by Article L 769 virtue of Article 2 thereof, that regu- lation applies to workers who have been subject to the legislation of one or more "If they are not, or are no longer, Member States and are nationals of one covered by Article L 768, workers who of the Member States or who are are sent by their employer to work stateless persons or refugees residing abroad temporarily as employees or in a within the territory of one of the capacity assimilated thereto, and whose Member States, and also to the members remuneration is paid by that employer, of their families and their survivors. shall be subject to French social security Article 13 er seq., which govern determi- legislation, provided that the employer nation of the applicable legislation and undertakes to pay all the contributions therefore of the scheme by which the due. person concerned is to be covered, do not deal with the matter of cover, if any, where work is performed outside the The maximum period for which the Community. workers referred to in the foregoing paragraph may be subject to French social security legislation shall be fixed by means of regulations. For the In the Commission's view, the answer to purposes of the application of that the question submitted for a preliminary legislation, they shall be deemed to have ruling must be based on the national their residence and place of work in legislation and on the principle of France."

JUDGMENT OF 12. 7. 1984 — CASE 237/83

2 The question was raised in proceedings between the French company Prodest Sàrl, Caisse Primaire d'Assurance Maladie [Local Sickness Insurance Fund], Paris [hereinafter referred to as "the Fund"], in which the issue was whether the insurance of a Belgian national employed by the company should be maintained under the French social security scheme while he was working temporarily in Nigeria.

3 The Fund rejected an application made by the company for that purpose, on the basis of the second paragraph of Article 39 of the Law of 3 January

PRODEST v CAISSE, PRIMAIRE D'ASSURANCE MALADIE DE PARIS

1972, which became the third paragraph of Article L 341-3 of the Code du Travail [Labour Code]; it provides as follows:

"Without prejudice to international agreements, no temporary-employment undertaking may place foreign workers at the disposal of any person whatsoever if the service in question is to be provided outside French territory."

In the view of the Fund, that provision extends to Community nationals except in the case of a posting to a Member State.

outside the territory of the Community, the Court ruled that the principle of non-discrimination as laid down, inter alia, in Article 48 of the Treaty and in the aforementioned Regulation N o 1612/68 applied in judging all legal relationships in so far as those relationships, by reason either of the place where they were entered into or of the place where they took effect, could be located within the territory of the Community. It follows that activities temporarily carried on outside the territory of the Community are not sufficient to exclude the application of that principle, as long as the employment relationship retains a sufficiently close link with that territory.

7 In a case such as this, a link of that kind can be found in the fact that the Community worker was engaged by an undertaking established in another Member State and, for that reason, was insured under the social security scheme of that State, and in the fact that he continued to work on behalf of the Community undertaking even during his posting to a noń-member country.

8 By virtue of Article 7 (2) of the aforementioned Regulation N o 1612/68, the principle of non-discrimination also applies to the social advantages enjoyed by workers. Even though that provision is stated to refer to the advantages enjoyed by Community nationals in the territory of the other Member States, it must be interpreted, in the light of the decision of the Court cited above, as also applying to a situation such as that described above.

9 Consequently, when the social security authorities of the Member State in which an employer is established apply their national legislation in circum­ stances such as those of the present case, they must disregard any provision which leads to discrimination against workers who are nationals of another Member State.,

T H E C O U R T (Fifth Chamber)

in answer to the question referred to it by the Commission de Première Instance du Contentieux de la Sécurité Sociale et de la Mutualité Sociale Agricole de Paris by a decision of 3 June 1983, hereby rules:

The provisions of Community law concerning the free movement of workers within the Community, in particular the provisions of Regu- lation No 1612/68 of the Council of 15 October 1968, must be interpreted as meaning that the principle of non-discrimination applies to the case of a national of a Member State who is employed by an under- taking of another Member State even during a period in which the employee temporarily works outside the territory of the Community for that Community undertaking, and that in connection with the application of the national provisions of the Member State in which that undertaking is established concerning the retention of affiliation to the general social

OPINION OF MR ADVOCATE GENERAL LENZ — CASE 237/83

security scheme of that State during the temporary posting of the employee in question to a non-member country, any provision which discriminates against nationals of other Member States must be dis- regarded.

Galmot Due Everling Kakouris Joliét

5. The consequences of the obligation of non-discrimination 3169

C — Conclusion

1 — Translated from the German.