C-3/87

Mr President, so as to better ensure, in the view of the Members of the Court, British authorities, that vessels fishing against fishing quotas allocated to the United Kingdom have a 'real economic link' with that country. 1. In 1983, the Government of the United Kingdom, concerned by the number of Spanish vessels obtaining registration and 4. Those conditions are of three kinds: fishing licences in the United Kingdom, passed legislation (the British Fishing Boats Act and the British Fishing Boats Order) providing that, in order to be able to fish (1) the vessel must operate from the United within United Kingdom fishery limits, at Kingdom, the Isle of Man or the least 75 % of the members of the crews of Channel Islands; British fishing vessels must have British nationality or that of another country of the Community. (2) at least 75 % of the crew must be British citizens or nationals of the European Community ordinarily resident 'on shore' in the United Kingdom, the Isle 2. Agegate Ltd, the applicant in the main of Man or the Channel Islands, to the proceedings, operates such a fishing vessel exclusion, however, until 1 January called the Ama Antxine, which, after being 1988 of Greek nationals and, until 1 properly registered in the United Kingdom January 1993, of Spanish or Portuguese in 1981, flies the British flag. However, the nationals, with the exception of spouses crew of the Ama Antxine continued to be or children under 21 years of age of composed essentially of Spanish fishermen Greek, Spanish or Portuguese workers who, moreover, are remunerated by a share already installed in the United of the proceeds of the sale of their catches. Kingdom; Agegate Ltd itself is a company incor­ porated in the United Kingdom and has its registered office in London. 95 % of its share capital is owned by Spanish interests (3) the skipper and all the crew must be and 5 % by British interests. making contributions to the social security scheme of the United Kingdom or to an equivalent scheme in the Isle of Man or the Channel Islands. 3. On 23 January 1986 Agegate Ltd obtained the renewal, with effect from 1 January 1986, of a series of licences for the 5. Whereas the first condition relating to Ama Antxine. However, the conditions to the operating conditions for fishing vessels which those licences are subject were altered is the subject-matter of Case 216/87, the

'if the definition of this term were a matter 7. The reason why that question is asked is within the competence of national law, it that, as regards Spain, the Act of Accession would therefore be possible for each contains transitional provisions on freedom Member State to modify the meaning of the of movement for workers but not on the concept of "migrant worker" and to freedom to provide services. eliminate at will the protection afforded by the Treaty to certain categories of person' ([1964] ECR 177, at p. 184). 8. First of all, Article 60 of the EEC Treaty provides that:

According to the same case-law of the 'services shall be considered to be "services" Court, within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not 'since it defines the scope of that funda­ governed by the provisions relating to mental freedom, the Community concept of freedom of movement for goods, capital a " worker " must be interpreted broadly'. and persons'. 2 — Case 75/63 Hoekitra (nee Unger) v Bejtuur der Bedrijfivere- 1 — OJ L 302, 15.11.1985. niging voor Detailhandel en Ambachten [1964] ECR 177.

OPINION OF MR MISCHO — CASE C-3/87

16. The single fact that the remuneration of 13. Although there is no doubt that all the share fishermen depends on the (variable) factors mentioned by the Court are useful volume of catches does not therefore for determining whether or not a person is a deprive them of the status of employees. worker, particular importance attaches to the fact that the work is done for and under the direction of another person and that it lasts a certain length of time. That seems to 17. Consequently, I consider that the first be the case in this instance. question referred to the Court should be answered as follows:

14. As for the remuneration test, its use lies rather in determining whether or not there is an economic activity. 'A fisherman who performs services for and under the direction of another person in return for which he receives remuneration 15. The Court has stated that the level 3of must be regarded as a worker within the the remuneration received by a person meaning of Article 48(1) of the EEC cannot prevent that person from being Treaty, even if his remuneration varies according to the proceeds of the sale of the 3 — See in this regard the judgments of 23 March 1982 in Case catches of fish to which he has contributed 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035 and irrespective of how national law or the and of 3 June 1986 in Case 139/85 Kempfv Staatssecretaris van /listitte [1986] ECR 1741. parties themselves classify their relationship.'

THE QUEEN v MINISTRY OF AGRICULTURE. FISHERIES AND FOOD, EX PARTE AGEGATE

The second question 20. The first subparagraph of Article 56(1) provides that:

'the Kingdom of Spain and the other Member States may maintain in force until 19. It should be recalled first of all that 31 December 1992, with regard to nationals Article 55 of the Act of Accession provides of the other Member States and to Spanish that: nationals respectively, national provisions, or those resulting from bilateral arrange­ ments, making prior authorization a requirement for immigration with a view to 'Article 48 of the EEC Treaty shall only pursuing an activity as an employed person apply, in relation to the freedom of and / or taking up paid employment'. movement of workers between Spain and the other Member States, subject to the 4 — Regulation (EEC) No 1612/68 of the Council of 15 transitional provisions laid down in Article October 1968 on freedom of movement of workers within the Community (OJ, English Specia! Edition 1968 (II), 56 to 58 of this Act'. p 475)

OPINION OF MR MISCHO — CASE C-3/87

25. But what was the situation in 29. As regards the condition relating to Peskeloglou? The German legislation residence on shore, it is not a measure concerning the taking-up and pursuit of concerning nationals of non-member employment by nationals of non-member countries or assimilated countries but relates countries had in fact been made more to Community nationals including British restrictive subsequent to the accession of citizens. Even if that condition is new, it Greece in so far as a work permit could no does not therefore fall under the standstill longer be granted to the spouse of a foreign provision contained in the Act of Accession. worker until after a period of lawful However, I shall later come to consider its residence in Germany of at least two years. compatibility with Community law in general.

26. In the case now before the Court the 30. It remains to say a few words about the situation is, in my view, very different. Joint Declaration relating to workers from Spanish citizens were excluded from 75 % the present Member States established in of crews, which had to be composed of Spain or Portugal and to Spanish or British and Community nationals after 1983, Portuguese workers established in the the year in which the British Fishing Boats 7 Community and members of their families. I do not believe that the declaration is of 5 — Judgment of 23 March 1983 in Case 77/82 Peskeloglou v Bundesanstalt für Arbeit [1983] ECR 1085. 6 — OJ L 291, 19.11.1979. 7 — OJ L 302, 15.11.1985, p. 480.

THE QUEEN v MINISTRY OF AGRICULTURE, FISHERIES AND FOOD, EX PARTE AGEGATE

35. Before 12 June 1985, no Spanish national could in fact be regarded as 2. The present Member States and the new 'working in accordance with regulations' as Member States undertake not to one of that 75 %. introduce in their rules, after the signature of this Act, new restrictions with regard to the taking-up of employment by members of families of 36. In my view, the foregoing consider­ those workers.' ations cannot be put in doubt by the fact that Article 57(1) of the Act of Accession confers, in the conditions which it lays down, the right to take up and pursue 32. However, the rule under which Spanish employment on certain members of a nationals are excluded from 75 % of a worker's family, namely his spouse and their crew's composition does not, as we have descendants who are under the age of 21 seen, constitute a new restrictive measure. It years or are dependants (see Article 10(1)(a) cannot therefore be affected by that Joint of Regulation No 1612/68) 'installed in Declaration (which is in any event appended accordance with regulations with the to the Final Act and not to the Act of worker in the territory of a Member State' Accession itself). either on the date of signature of the Act of Accession (Article 57(1)(a)) or after the date of its signature (Article 57(1)(b)). 33. Moreover, it must be observed that, according to paragraph (1) of the declaration, the undertaking of the present Member States and of the new Member 37. Indeed, it is probably because of that Slates not to apply any new restrictive provision that the United Kingdom is now measures that they may adopt after 12 June conferring the right to be one of the 75 % 1985 in the field of the residence and on the spouses and children under 21 of employment of aliens applies only to Spanish workers already installed in the nationals of other Member States who United Kingdom on 12 June 1985. 'reside or work, in accordance with regu­ However, if my interpretation is right, the lations, on their territory'. Its very title United Kingdom was not obliged to do this

because no Spanish national had the right to 'Articles 55, 56 and 57 of the Act of be one of the 75 % before that date. A Accession of Spain and Portugal must be Spanish national could not therefore interpreted as authorizing a Member State transmit that right to members of his family. to maintain, with regard to Spanish nationals, the same restrictions regarding access to and the pursuit in its territory of paid employment which applied to them before the entry into force of the Act of 38. But since the United Kingdom is now Accession.' conferring the right in question on the members of the family of a Spanish national who was already installed in the United The third question Kingdom before the signature of the Act of Accession, it should also grant it to the worker himself who fulfils that condition. Furthermore, as I explain later, the fishing 41. Whereas the second question submitted quotas are intended to benefit that part of to the Court expressly refers to only Articles each Member State's population which lives 55 and 56 of the Act of Accession of Spain by the fishing industry. If a Spanish national and Portugal and, according to its wording, already lived in the territory of the United relates exclusively to the situation of Kingdom before 12 June 1985, there is no Spanish nationals, the third question reason not to allow him to pursue the occu­ concerns quite generally the compatibility pation of fisherman after that date and from with Community law, including the that territory and to be one of the 75 %. common fisheries policy, of the conditions relating to nationality, residence and affil­ iation to the social security scheme which the licences in question require respectively 75 % and all the crew members of British fishing vessels to fulfil. 39. Finally, as regards the condition relating to social security, it must be observed that the only relevant transitional measure in the Act of Accession is Article 60, 8which, however, 42. It reads as follows: only concerns family benefits and allowances. Therefore, the compatibility of the aforementioned condition with Community law is not to be assessed with 'In any event, is the grant of a licence by a reference to the Act of Accession either, but Member State after the accession of Spain with reference to 'ordinary' Community and Portugal to the European Communities law, especially since the condition applies to to the owner or charterer of a fishing vessel the whole crew. registered in that Member State and flying its flag which is subject to the following conditions :

A — The conditions regarding nationality and 'neither Article 1 nor Article 2(1) of the residence regulation precludes a Member State from enacting a measure, such as that at issue, concerning the composition of the crews of fishing vessels flying its flag and fishing in 43. For point (i) of the High Court's third the maritime waters within its jurisdiction' question the obvious starting point is the (paragraph 14). Court's judgment of 19 January 1988 in Case 223/86 Pesca Valentia Ltd v Minister for Fisheries and Forestry, Ireland and the Attorney General [1988] ECR 83). 45. It must be remembered that the Irish measure at issue in the Pesca Valentia case was identical to the British measure except that it did not involve a residence condition. 44. According to that judgment, it is clear from the provisions of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for 46. Having thus confirmed the power of the the fishing industry 9that, Member States to adopt a measure of that type, the Court also declared (in paragraph 21 of the judgment) that the condition 'pending the entry into force of such requiring a minimum proportion of the Community measures, the Member States crews of vessels to be Community nationals was not contrary to Article 7 of the EEC 9 — OJ L 20, 28 .1.1976, p 19 Treaty either.

OPINION OF MR MISCHO — CASE C-3/87

That power necessarily 49. Regulation No 101/76 also provides includes the power to refuse registration for that the Member States (Article 8) or the new fishing vessels if the competent auth Community (Article 9) may grant aid with orities consider that an increase in the total a view to increasing the productivity of tonnage of their fleet is incompatible with fishing activity, in particular through the aim of maintaining a fair standard of restructuring of fleets. Council Regulation living for those who live by the fishing (EEC) No 2908/83 of 4 October 1983 on a industry (see the fifth recital of the preamble common measure for restructuring, to Regulation No 101/76). modernizing and developing the fishing industry and for developing aquaculture (Official Journal L 290, 22.10.1983, p. 1), which is based on Article 9(2) of Regulation No 101/76, is also intended to establish, 52. The same concern to maintain a certain within the framework of multi-annual relation between catch potential and the programmes, a satisfactory balance between number of fishing vessels was a guiding fishing capacity and the available resources factor in the drafting of Articles 156 to 164 of the sea (see in particular the third recital of the Treaty of Accession of 12 June 1985. and Articles 3, 4 and 11). Without prejudice to the annual fixing of quotas, those provisions lay down, as regards Spain, a list of specifically designated vessels authorized to fish in rotation in the waters falling within the

THE QUEEN v MINISTRY OF AGRICULTURE, FISHERIES AND FOOD, EX PARTE AGEGATE

allocated to those Member States in the 56. Let us now examine the contested waters falling within the jurisdiction of United Kingdom provision in the light of Spain. those principles.

53. Finally, the observation in the Pesca 57. The first point to be noted is that, for Valentia judgment regarding the power of the purposes of the 75 % rule, the United the Member States to define themselves the Kingdom has completely assimilated the concepts of fishing vessels 'flying the flag of' nationals of other Member States to its own a Member State or 'registered' in a Member nationals. In order to be able to be counted State implies in particular, in my view, that as one of the 75 %, British citizens, too, those States have the power to adopt appro­ must reside in the United Kingdom. The priate measures to prevent their flag from residence condition applies to British becoming what has come to be called 'a flag nationals and those of other Member States of convenience'. alike.

OPINION OF MR MISCHO — CASE C-3/87

State in order to fish in waters beyond the 64. Agegate, on the other hand, maintains 12-mile limit of that other Member State that 'the quota system established by the without ever going ashore, who is not Community should not constitute a affiliated to the social security scheme of disguised means of abolishing the principle that country, who is paid in the currency of of equal access to the waters of the Member his country of origin and who, at the end of States' (paragraph 56 of the Report for the his fishing trip, returns directly to a port in Hearing). his own country is actually exercising the right to move freely within the territory of another State (Article 48(3)(b)) or to stay in another Member State for the purpose of 65. As regards the latter argument, it must employment there (Article 48(3)(c)). Most be emphasized that, although the quota countries consider in fact that vessels do not system does not abolish that principle, it constitute a part of the territory of the does restrict its scope very substantially but country whose 'nationality' they have. without the Court having considered it necessary to declare it unlawful.

61. However, I shall refrain from considering that question because the solution to the problem under consideration 66. Like all common policies, the common cannot be made to depend on a factual fisheries policy is also based on the principle situation which may vary from case to case. that there should be no discrimination. This principle was expressed in the following way in Article 2 of Regulation No 101/76:

'the volume of the catches available to the 68. But, since, in the field of fishing, the Community ... shall be distributed between overfishing of the main species of fish has the Member States in a manner which jeopardized the standard of living of those assures each Member State relative stability who live by the fishing industry, very of fishing activities for each of the stocks important exceptions to the principle of considered'. equal conditions of access have been introduced, on a transitional basis, by the 1972 Treaty of Accession, various Council 71. For each species of fish, the percentage regulations and the 1985 Treaty of of the volume of available catches allocated Accession to each Member State is calculated by taking into account the average quantities caught by the fleets of the different Member States between 1973 and 1978.

OPINION OF MR MISCHO —CASE C-3/87

74. Consequently, if the fishermen of one 78. The standard of living of fishermen of those States to which quotas have been living in other Member States must be allocated on the basis of their catches in the assured by the quotas allocated to those period 1973-78 are suddenly confronted by States. competition from vessels previously registered in another country and having on board mariners residing in other Member States or in non-member countries, it is the fishermen of the first Member State who 79. It is the fishing communities of each may claim that they are being discriminated Member State that the Community quota against since the balance of sacrifice system requires to make an effort to restrict intended by the Community legislature has their catches to levels in proportion to the been upset in a way which adversely affects catches that they were taking before the them. entry into force of the Community system for the conservation of fishery resources; it is for the benefit of those same communities that the system of national quotas is 75. That claim may not be answered by the intended to guarantee the pursuit of their objection that the aim of the Community fishing activities on a stable, long-term basis. quota regulations is simply to assure 'each Member State relative stability of fishing activities for each of the stocks considered' and that it does not matter whether those activities are carried on by 100 or by 150 80. Such exceptional rules are justified vessels, by persons residing in that State or because, as the Council stated in the second by persons who merely pass through the recital of the preamble to Regulation No waters under that State's jurisdiction. 101/76,

88. I do not believe that the argument 84. That provision is worded as follows: which the Commission bases on the judgment of 20 April 1978 in the ! Commissionnaires réunis case ' is such as to 'Member States shall determine, in cast doubt on those conclusions. accordance with the applicable Community provisions, the detailed rules for the utili­ zation of the quotas allocated to them.'

89. In relying in particular on that 85. In its judgment of 3 October 1985 in judgment the Commission argued that even Case 207/84 De Boer v Produktschap voor if the Community legislature had intended, Vis en Visprodukten [1985] ECR 3203, at when conferring on the Member States the p. 3218, the Court held that: power to determine the detailed rules for the utilization of quotas, to authorize them to derogate from any of the provisions of 'if national rules restrict the number of vessels the Treaty, in particular those concerning which may fish for herring by making it a the fundamental freedoms, it would condition for access to the quota that the certainly not have the power to do so. fisherman applying for a quota share must have the capacity to process the herring caught ... such rules constitute detailed rules for the utilization of the quota within the meaning of Article 5(2) of Regulation 90. It is indeed the case, as the Court has No 170/83 which are within the powers of repeatedly held with regard to the free 12 the Member States . .. ' (paragraph 28, at p. movement of goods, that in the absence of 3218). a clear exception, which in any event must be strictly construed, the powers, even wide powers, which the Community institutions have do not allow them to derogate, or to 86. Whether that article confers on the authorize the Member States to derogate, Member States the power to make their from provisions of the Treaty, particularly vessels" right to fish for species of fish for those concerning the fundamental principles which quotas exist subject to certain of the common market. conditions cannot therefore be questioned.

91. However, I note that whilst affirming justified and in accordance with the that principle, the Court has accepted, in objectives of the Treaty, can have the effect the Commissionnaires Réunis judgment intended by the legislature. itself, that such derogations are possible if there is a provision in the Treaty which provides for them or authorizes them not 94. As far as the fishing industry is only 'expressly' but also 'by necessary impli- concerned, the Court has already been cation' ([1978] ECR 946, paragraph 26). faced by a similar situation in Kramer. At a Since the Act of Accession of Spain and time when there were still no Community Portugal, the quota system has treaty status. rules on the conservation and management of fishery resources, the compatibility of national quotas with the Community rules governing structural policy and the common organization of the markets in the fisheries 92. Similarly, in its judgment of 2 February sector had been called in question. 1988 in Case 61/86 United Kingdom v Commission [1988] ECR 431, the Court expressly accepted that 95. In its judgment or 14 July 1976 in 13 Kramer, the Court had to recognize that such measures may have an effect on the functioning of certain parts of the general 'an obstacle to the free movement of system established in this field, and in products within the common market ... particular on the price system, and it held may [nevertheless] be justified in an organ­ that there was an obligation on the Member ization of the market which has not yet States to ensure that catches were limited in been completely unified where it is intended such a way as to keep such effects to a to offset inequalities arising from the fact minimum. It none the less concluded that, in that the common organization of the adopting such measures, a Member State market has not been fully achieved, in order does not jeopardize the objectives or the to enable products covered by the organ­ proper functioning of the Community ization to circulate on equal terms without system (paragraphs 50 to 52). thereby artificially distorting competition between producers in different regions' (paragraphs 10 and 11). 96. It expressly based its reasoning on the general system and the objectives of the Community rules established in the fisheries sector and in particular on the nature and 93. Since freedom of movement for persons the circumstances of the 'production' of fish is one of the foundations of the Community (paragraphs 56 and 57). as well as the free movement of goods, that ruling must, in my view, also apply to the rules of the Treaty guaranteeing such 97. There is no doubt that the view to be freedom, so that whilst exceptions to the taken in this case is also that national relevant rules of the Treaty, even if not measures intended to ensure that the popu­ expressly provided for, must still be inter­ lation of that Member State which lives by preted strictly, they may be accepted the fishing industry receives at least some provided that they do not go further than is necessary for ensuring that other provisions 13 — Judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76 of Community law, in themselves perfectly Cornells Kramer and Others [1976] ECR 1279.

99. Similarly, in its judgment of 17 September 1988 in Case 51/87 concerning 'If the requirement of an authorization generalized tariff preferences, to which the constitutes a restriction on the freedom to Commission referred in detail at the provide services, the requirement of a hearing, the Court accepted that, permanent establishment is the very negation of that freedom. It has the result of depriving Article 59 of the Treaty of all effectiveness, a provision whose very purpose is to abolish 'as the common commercial policy stands at restrictions on the freedom to provide present, such a system (of national quota services of persons who are not established shares which is likely to cause distortions in the State in which the service is to be and deflections of trade) may be compatible provided'. with Articles 9 and 113 of the Treaty where the allocation of national quota shares is justified by compelling circumstances of an administrative technical or economic nature However, this did not prevent it from going which make the Community administration on to state that: of the quota more difficult' (paragraph 8).

'if such a requirement is to be accepted, it 100. Finally, in its judgment in Case 83/78 must be shown that it constitutes a condition Pigs Marketing Board v Redmond [1978] which is indispensable for attaining the ECR 2347, cited at the hearing by the objective pursued (paragraph 52). United Kingdom, the Court stated that:

In that case, the objective pursued was the 'it follows from Article 38(2) of the EEC protection of the person seeking insurance Treaty that the provisions of the Treaty and of the person insured which the relating to the common agricultural policy German Government claimed that it could have precedence, in case of any discrepancy, not provide effectively except by means of over the other rules relating to the estab­ verifications at a permanent establishment at lishment of the common market' which all the necessary documents were (paragraph 37). kept.

'constitute a complete system of conflict rules the effect of which is to divest the 103. To conclude, I would also cite the legislature of each Member State of the Court's judgment of 15 January 1987 in power to determine the ambit and the Joined Cases 271/83, 15, 36, 113, 158, conditions for the application of its national 203/84 and 13/85 Ainsworth and Others v legislation so far as the persons who are Commission and Council [1987] ECR 167, subject thereto and the territory within in which the Court held that scientific which the provisions of national law take researchers carrying out work identical to effect are concerned. As the Court pointed that done at the same place by other out in its judgments of 23 September 1982 researchers could be paid less because the in Case 267/81 (Kuijpers, cited above), and quite specific position of the United Case 275/81 (Koks [1982] ECR 3013), "the Kingdom Atomic Energy Agency to which Member States are [not] entitled to they belonged, unlike the other researchers, determine the extent to which their own constituted an objective justification for that legislation or that of another Member State different treatment. is applicable" since they are "under an obli­ gation to comply with the provisions of Community law in force" (see the judgment of 12 June 1986 in Case 302/84 Ten Holder 1 [1986] ECR 1827, paragraph 14)'. 4 104. Finally, it may be noted that in the present case Community nationals, even 106. Article 13(2) of Regulation No 15 those of non-member countries, not 1408/71 provides that fulfilling the residence condition are not necessarily excluded on that ground from 'subject to Articles 14 to 17: ... the crews of British fishing vessels. They may always form part of the 25 % of crew members who are not subject to such a condition. (c) a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State; 105. B — It remains for me to examine the ...'. condition relating to social security contri- butions, which applies to the whole crew 14 — See in particular the judgment of 10 July 1986 in Case and not only to those crew members who 60/85 M. E. S. van Vermoolen, née Luitjen and Raad van are required to reside in the United Arbeid, Breda [1986] ECR 2365, at pp. 2372 and 2373, paragraph 14. Kingdom, on the Isle of Man or in the 15 — For a codified version, see Council Regulation (EEC) No Channel Islands. In this regard, it must first 2001/83 of 2 June 1983, OJ L 230, 22.8.1983, p. 6.

'(a) Community law does not preclude a Member State from making the grant 109. It is true that the English version uses of a fishing licence for a fishing vessel the term 'employed', which — in contrast to registered in that Member State and subparagraph (b) ('self-employed') and like flying its flag subject to the condition subparagraph (a) ('employed') of the same that at least 75 % of its crew must be provision — could be understood as nationals of the Member State granting referring only to persons pursuing activities the licence or nationals of the as employed persons. The other language European Economic Community or versions, however, correspond to the French from requiring that, in order to fish for version, using for example the terms species of fish subject to quotas, the 'Berufstätigkeit', 'beroepswerkzaamheden', crew members in question must ordi­ and 'attività professionale'. Moreover, it is narily reside in its territory. clear from the English version of Article 14b, which is applicable to mariners only, that Article 13(2)(c) also covers those of them who pursue activities as self-employed persons on board a vessel. It must therefore (b) Subject to the special cases provided for be concluded that there is an error of trans­ in Article 14b of Regulation (EEC) No lation here and that the actual intention of 1408/71 of the Council, Community the legislature was to determine the legis­ law does not preclude that Member lation applicable to manners according to State from requiring the skipper and all the flag of the vessel on which they pursue the crew of such a vessel to be making their activity, whether as employed persons contributions to its own social security or as self-employed persons. scheme'.

118. Consequently , I propose that the Court should reply to the fourth question as follows :

'The provisions of Article 14b of Regulation ( EEC ) No 1408 / 71 may be relied upon by individuals before a national court to oppose the application of provisions of national law which are contrary to them' .

16 — In this regard, see in particular the judgment of 4 April 1974 in Case 167/73 Commission v France [1974] ECR 359, paragraph 35.