C-2/89

OPINION OF MR TESAURO —CASE C-2/89

O P I N I O N OF MR ADVOCATE GENERAL TESAURO delivered o n 22 February 1990 *

Mr President, continued to carry on his activity as a Members of the Court, part-time teacher. He claimed child allowances for the first quarter of 1984 from the competent Netherlands authorities in respect of his two sons. 1. The present reference for a preliminary ruling concerns the interpretation of Article 13(2)(a) and Article 73(1) of Council Regu- lation (EEC) No 1408/71 of 14 June 1971 5. However, the Raad van Arbeid, on the application of social security schemes Eindhoven, rejected the claim on the to employed persons, to self-employed ground that Mr Kits van Heijningen was persons and to members of their families not insured on the first day of the quarter in moving within the Community. 1 question (namely 1 January 1984), as required under Article 11 of the Algemene Kinderbijslagwet (General Law on child allowances, hereinafter referred to as 'the 2. The facts of the case can be summarized law'), since that day was not a working day as follows: for him.

Mr Kits van Heijningen, residing in 6. It should be pointed out in this regard Belgium, worked full-time for Philips N V in that under Article 6 of the law an insured Eindhoven (Netherlands), and at the same person is a person who is at least 15 years time worked as a part-time teacher at an old and is resident (Article 6(a)) or, if not institute for vocational training, also in resident, is liable for income tax in respect Eindhoven, where he taught for two hours of employment in the Netherlands (Article per day on Mondays and Saturdays. 6(b)).

8. With its first question the national court their families moving within the asks whether the activities as a pan-time Community', is in itself an indication that its teacher, previously carried on as a scope is not limited to the 'migrant workers' secondary activity, which a retired worker referred to in Article 51 of the EEC Treaty. continues after the start of his retirement for two hours of teaching per day on each of two days per week, are to be regarded as effective and genuine activities for the 12. Moreover, Article 2(1) of the regu- purposes of the Community rules on the lation, which defines the persons it covers, free movement of workers. specifies that the regulation applies to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are 9. As is evident from the outline of the nationals of a Member State. dispute and from the wording of the other questions, the national court is essentially asking whether Mr Kits van Heijningen is a person covered by Regulation No 1408/71. 13. Article 1(a) defines the concept of employed or self-employed persons in fairly wide terms stating in particular that, for the 10. However, it is evident from the way in purposes of the regulation, it is to be which the question is worded that the understood as meaning 'any person who is Centrale Raad van Beroep is working on a insured, compulsorily or on an optional false premiss in so far as it appears to continued basis, for one or more of the assume that the persons covered by Regu- contingencies covered by the branches of a lation N o 1408/71 are the same as those social security scheme for employed or self- covered by Article 48 et seq. of the EEC employed persons'. Treaty.

Article 13(2)(a) provides that a person employed in the territory of one Member 16. It follows that checking whether the State is subject to the legislation of that professional activity is effective and genuine State even if he resides in the territory of is of no assistance in determining the scope another Member State. of Regulation N o 1408/71. In short: if a person is insured under a social security scheme applicable to employed or self- employed persons, he is in any event considered to be an employed or self- 19. It should be pointed out in this regard employed person for the purposes of that that the provisions of Title II of the regu- regulation. lation, including the abovementioned Article 13, seek to establish a comprehensive system of rules for settling conflicts intended to preclude the possibility that no legislation will be applicable in a specific case or, 17. The national court's second question conversely, that more than one legislative seeks to establish whether a professional system will apply simultaneously, thereby activity carried out in the territory of a creating complex legal situations and Member State other than the one in which needless administrative complications. the employed person resides and to which he returns each working day after work, gives rise, having regard to Article 13(2)(a) of Regulation No 1408/71, to the application of the legislation of the first That is precisely the reason why Article Member State only in respect of working 13(1) lays down the principle that persons days or also in respect of intervening days to whom the regulation applies are to be on which no professional activity is carried subject to the legislation of a single Member out. State only.

Thus to accept that legislation to which the true that Member States do not have an conflict rules refer is applicable only in part absolute discretion in that regard but are to a person pursuing an activity part-time, required to legislate within the limits laid would mean disregarding the spirit and the down in the field by Community law.8 letter of the rules in question, thereby creating an unjustifiable gap and also allowing the person concerned to remain unprotected, if no legislation were 23. It is apparent from the case-law of the applicable to him. Court that the provisions of Title II of Regulation No 1408/71 'constitute a complete system of conflict rules the effect of which is to divest the legislature of each

24. From that outline of the case-law of the Court it is in my view an obvious conclusion 22. The preliminary remark should be made that when a national legislature lays down a that although it is true that it is for the territorial condition for entitlement to a legislature of each Member State to lay social security benefit, it infringes the down the conditions creating the right or provisions of Community law in that sphere the obligation to become affiliated to a in so far as, by restricting the persons social security scheme or to a particular covered by the national legislation, it branch under such a scheme, 7 it is equally undermines the provisions of Title II of Regulation No 1408/71. 6 — The third question referred for a preliminary ruling was as follows: 'If the answer to Question 1 is no, does the legis- 8 — See the judgment of 17 May 1984 in Case 101/83 Raad lation of the Member State on whose territory the former vanArbeidv Brusse[1984] ECR 2223, paragraph 28 principal activities were last carried out continue to apply pursuant to Article 13(2)(a) even after the date of 9 — See the judgment of 18 July 1986 in Case 60/85 Lmjten \ retirement?' Raad van Arbeid [1986] ECR 2365, paragraph 14 7 — See the judgments of 24 April 1980 in Case 110/79 10 — See the judgment of 23 September 1982 in Case 276/81 Coonan v Insurance Officer [1980] ECR 1445, Sociale Verzekeringsbank v Knijpers [1982] ECR 3027, paragraph 12, and of 12 July 1979 in Case 266/78 Brunori paragraph 14 v Lanaeiverstcherungsanstalt Rhen Provinz [1979] ECR 11 — See the judgment of 23 September 1982 in Case 275/81 2705, paragraph 6. Koks v Raad van Arbeid [ 1982] ECR 3013, paragraph 10