C-143/87

Mr President, other hand, argue that they are not obliged Members of the Court, to pay anything, and put forward the following arguments: (a) they are not compulsorily affiliated, as employees, to the respective social security systems of the 1. In the three references for a preliminary States in which they are employed; (b) ruling now before the Court, the tribunal du under Belgian legislation, a self-employed travail, Brussels, and the Belgian Hof van person who already pays contributions as an Cassatie request the Court to interpret the employee to a national scheme is, on this provisions of the EEC Treaty relating to the account, exempt from payment of further free movement of persons and the freedom contributions; (c) to plead, as Inasti does, to provide services. that their contributions are paid into schemes of Member States other than Belgium is contrary to the principal of equal treatment and to the Community provisions relating to freedom of movement for The parties in the relevant proceedings are, workers. on the one hand, the Institut national d'assurances sociales pour travailleurs indé­ pendants (National Social Insurance Institution for Self-employed Persons) (Inasti) and, on the other hand, Christopher In view of those arguments, the tribunal du Stanton, a British national employed by a travail, Brussels, (Case 143/87) and the British insurance company (Case 143/87); Belgian Hof van Cassatie (Cases 154 and Heinrich Wolf, a German national 155/87) referred to the Court, by judgments employed as an engineer with Degussa in of 30 April and 4 May 1987, questions of a Frankfurt; and Wilfried Dorchain, a Belgian substantially similar nature. They may be national employed in Germany by summarized as follows: Must Article 52 et Ford-Werke AG ( J oined Cases 154 and seq. of the EEC Treaty be interpreted as 155/87). meaning that the legislation of a Member State is incompatible with those provisions where it provides that self-employed persons are exempt from the payment of social security contributions when they are already In addition to those principal occupations, affiliated to a social security scheme in that each of these persons has for some time State but there is no exemption for self- carried out duties as a director in a Belgian employed persons who are covered, in company, namely L'Étoile 1905, NV relation to their employment, by the social Microtherm Europe and PVBA Almare, security scheme of another Member State? respectively. Since, under Belgian law, a director of a commercial company is deemed to be a self-employed person, Inasti requires Messrs Stanton, Wolf and Dorchain to pay the relevant social security During the proceedings before the Court contributions. The three directors, on the written observations were submitted by

3. Stressing that Community coordinating rules were only introduced in this field by 2. Let me begin with a few words about the Regulation No 1390/81 of 12 May 1981 national legislation whose compatibility with (Official Journal 1981, L 143, p. 1), Inasti Community law is at issue. Article 3 (1) of observes that the legislation described above Royal Decree No 38 of 27 July 1967, which sought to ensure adequate social protection established the social security scheme for for any person carrying on an occupational self-employed persons, provides that 'any activity in Belgian territory without giving natural person carrying on in Belgium an any importance, even indirectly, to that occupational activity in respect of which he person's nationality. Furthermore, is not bound by a contract of employment employment pursued by way of principal or fixed conditions of employment' must occupation in another Member State is pay contributions to the social security governed by the scheme specific to that scheme. Under Article 2 of the Royal State and cannot therefore have any effect Decree of 19 December 1967, which gave on the application of Belgian social legis­ effect to this scheme, the holding of a lation. In the final analysis, in order to give remunerated directorship in a commercial entitlement to exemption from contributions company is deemed to be such an occupa­ the employment must be governed by a tional activity. Belgian social security scheme or — and this is the only exception — it must be in the service of an international organization of Moreover, Article 12 (2) of Royal Decree which Belgium is a member. No 38 provides that 'a person subject to the scheme who, .. . habitually pursues by way of principal occupation another employment occupational activity is not liable to pay any This argument is not persuasive. I should contributions if his income as a self- observe first of all that the problem raised employed person' does not reach a certain by the national courts concerns a situation level. The concept of a habitual and in which the refusal to grant exemption is principal occupation is further defined in based not on the nationality of the Article 35 (1) of the Royal Decree of 19 employee who is also a director of a Belgian December 1967. The definition is satisfied company, but on the fact that the social if: '(a) [the] employment of [the person security scheme to which he pays contri­ concerned] as a manual worker, clerical butions is not governed by Belgian legis­ worker, miner or sailor on a ship flying the lation. It is not necessary to determine Belgian flag meets the definition of a whether this state of affairs conceals indirect principal occupation within the meaning of discrimination in order to recognize that it the scheme applicable to those categories of makes the self-employed person's right to workers; (b) the activity he pursues is benefit from the exemption depend on covered by another pension scheme estab­ employment in Belgium. If that condition is lished by or under a law, by a provincial not met, the worker is required to pay a

4. In the light of the foregoing considerations, I suggest that the Court should reply as follows to the questions referred by the tribunal du travail, Brussels, and the Belgian Hof van Cassatie by judgment of 30 April and 4 May 1987 repectively:

'Article 52 et seq. of the EEC Treaty must be interpreted as meaning that the legislation of a Member State is incompatible therewith where exemption from the payment of social security contributions of self-employed persons who work there depends on their affiliation at the same time, by virtue of an employment relationship, to a social security scheme in that State.'