C-196/90
ECLI:EU:C:1991:298
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DE PAEP
O P I N I O N O F MR ADVOCATE GENERAL TESAURO delivered on 9 July 1991 *
Mr President, T w o weeks later the fishing vessel sank and Members of the Court, five members of the crew were lost including the captain, Germain Ackx, and the cabin boy, Piet Ackx, respectively the spouse and son of Mrs De Paep. Subsequently both were declared deceased 1. In the present case the Belgian Court of by the Rechtbank van Eerste Aanleg (Court Cassation has referred to the Court of of First Instance), Bruges. At the time of the Justice for a preliminary ruling two accident Piet Ackx, residing in Belgium, questions on the interpretation of the continued to be paid by the De Pax conflict rules contained in Title II of Regu- company. lation No 1408/71 ' in the case of a worker who was the victim of an accident on board a vessel flying the flag of a State other than that in which the undertaking remunerating him is established. The Fonds voor Arbeidsongevallen (Accidents at Work Fund, hereinafter referred to as the 'Fund') which is entrusted under the Belgian legislation on accidents at work with the task of paying compensation A brief summary of the facts of the case and for accidents at work involving mariners, the legal background will assist in arriving rejected the application for an annuity at a better understanding of the scope and submitted by Mrs De Paep for compen- the meaning of the questions referred to the sation for the loss of her son. Court.
The Court before which Mrs De Paep then The defendant in the national proceedings, brought the matter granted her application Mrs De Paep, was the director of a Belgian and that decision was upheld by the company, De Pax, which was the owner of Arbeidshof (Labour court of appeal), Ghent. the fishing vessel Hosanna. On running However, the Fund contested the appellate aground in July 1979 the vessel sustained court's decision on two grounds of appeal in major damage and was declared to be particular, first an infringement of Article unseaworthy. In January 1980 the fishing 76(1) of the Belgian law of 10 April 1971 on vessel was sold to an English undertaking accidents at work whereby for the purposes whose shares were held in part by Mrs De of that law mariners are defined as the Paep, and was then registered under the members of the crew of a Belgian fishing United Kingdom flag. vessel, and secondly under Article 89 of the Belgian law of 5 June 1928 governing the * Original language: Italian. contracts of employment of mariners 1 — Council Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons and to {Moniteur belge of 26.7.1928), whereby such members of their families moving within the Community contracts are terminated on an official (Official Journal, English Special Edition 1971 (II), p. 416). declaration of the vessel's unseaworthiness.
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OPINION OF MR TESAURO —CASE C-196/90
Taking the view that the outcome of the lation's scope of application radone litigation depended on the interpretation of materiae, provides in paragraph 1 that the Community social security provisions the regulation is to apply to legislation Court of Cassation decided to stay the concerning the various branches of social proceedings and to ask the Court of Justice security. whether, in a case such as that described above, Article 13(2)(b) now Article 13(2)(c) and Article 14(2)(c), now Article 14b, of Regulation (EEC) No 1408/71 must be interpreted as meaning that the employment relationship between the person concerned It follows that, in determining the legislation and the undertaking by which he is remun- applicable to employed or self-employed erated must be assessed in accordance with workers, the conflict rules contained in the law of the country in which the under- Articles 13 and 14, cited above, of Title II taking has its registered office; and also of the regulation refer solely to the legis- whether the provisions of Community law lation concerning the branches of social relating to the free movement and equal security enumerated in Article 4 and not to treatment of workers from the Member the legislation governing the contractual States, in particular Articles 48 and 51 of relationship between the worker and the the EEC Treaty and Article 3(1), Article employer. That relationship is not regulated 13(2)(b) and Article 14(2)(c) of the by the provisions contained in Regulation abovementioned regulation, must be inter- No 1408/71, but must instead be assessed preted as meaning that the legislation on the basis of the relevant rules of private governing the contract of employment and international law. the legislation on compensation for accidents at work have the effect of depriving the person concerned of his right to social security benefits on the ground that the fishing vessel was not operated under the flag of the country in which the 3. As to the second question submitted by undertaking is established. the Court of Cassation I would first of all state that its scope does not seem entirely clear, in view of the national legislative situation.
2. In order to reply to the first question raised by the national court it is necessary at this point to recall briefly the scope of Although the application of Article 76 of the Regulation N o 1408/71, as provided for in Belgian law on accidents at work, which Articles 2 and 4 of that regulation. The deems only the members of the crew of a former provision defines the personal scope Belgian fishing vessel to be mariners, would of the instrument, by providing in particular deprive the defendant in the main that the regulation is to apply to workers proceedings of her right to compensation who are or have been subject to the legis- because her son was sailing on board a lation of one or more Member States and vessel flying the British flag, the situation are nationals of one of the Member States seems to me to be different as in the case of and to members of their families and their Belgian law governing the contract of survivors. Article 4, which defines the regu- employment of a mariner, on the sup-
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position that under the rules of private concerned on the ground that the vessel was international law that law would be the not sailing under the flag of the State in one applicable to the present case. which the undertaking has its registered office.
In that regard as the national court itself indicated, whilst Article 89 of that law provides for the termination of the contract I would first of all observe that Article 1(a) of employment on the declaration of the of Regulation No 1408/71 defines the vessel's unseaworthiness, it is also true that concept of worker very widely, by stating in under Article 17 that legislation is not particular that for the purposes of the regu- applicable to a mariner's contract entered lation a worker is to be deemed to be 'any into by a Belgian mariner for service on a person who is insured, compulsorily or on foreign vessel, even if it is concluded in an optional continued basis, for one or Belgium. more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons'.
Moreover, as the Commission has pointed out, Article 6(1) of the Law on accidents at work provides that the nullity of the contract of employment cannot be invoked against the application of the law itself. The provision in question constitutes, moreover, the codification of a principle laid down by the Court in connection with the earlier Regulation No 3/58 concerning social security for migrant workers 2 Furthermore, it would be rather surprising if whereby within that legislative framework in the presence of essential features consti- the concept of 'wage earner or assimilated tuting salaried employment, that is to say worker' must have a Community meaning the performance of work, remuneration and referring to all those who, as such and subordination, a person could subsequently under whatever description, are covered by be deprived of any protection on the ground the different national systems of social of the nullity of his contract of employment. security. 3 The Court has also held that the status of worker within the meaning of Regulation No 1408/71 must be considered to be acquired when the worker complies with the substantive conditions laid down 4. Having said that and whilst leaving to objectively by the social security scheme the national court the task of interpreting applicable to him even if the steps necessary the Belgian legislation on accidents at work, for affiliation to that scheme have not been I shall merely attempt to provide a reply as completed. 4 regards the situation contemplated by the national court, that is to say the case in 2 — Journal Officiel 1958 L 30, p. 561. which the legislation governing the contract 3 — Judgment in Case 75/63 Hoekstra v Bedrijfsvereniging voor Detailhandel'[1964] ECR 177. of employment and that governing accidents 4 — Judgment in Case 39/76 Mouthan v Metaalnijverheid at work cannot be relied on by the person [1976] ECR 1901.
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OPINION OF MR TESAURO — CASE C-196/90
Title II of the regulation for its part lays Consequently, although it is for the legis- down conflict rules in order to determine lature of each Member State to determine the applicable social security legislation. the conditions under which the right or obligation to be affiliated to a social security scheme arises, 9 the Member States do not enjoy absolute discretion in this regard but are obliged to legislate within the limits laid down by Community law in the matter. Under the terms of Article 13(2)(b), in the version in force at the material time, 5 a worker engaged on board a vessel flying the flag of a Member State is subject to the legislation of that State, without prejudice to Articles 14 to 17. However, Article 14(2)(c) 6 provides by way of express dero- The Court has in fact held that 'the gation from the abovementioned rule that a Member States are (not) entitled to 'worker employed on board a vessel flying determine the extent to which their own the flag of a Member State and remun- legislation or that of another Member State erated for such employment by an under- is applicable' 10 since they are 'under an taking or a person whose registered office obligation to comply with the provisions of or place of business is in the territory of Community law in force'. 1 1 In particular, another Member State shall be subject to the conditions laid down by the Member the legislation of the latter State if he is States for the purposes of affiliation to a resident in the territory of that State; the social security scheme cannot have the undertaking or person paying the effect of excluding from the scope of the remuneration shall be considered as the legislation at issue persons to whom it employer for the purposes of the said legis- applies pursuant to Regulation No lation'. 1408/71.' 2
In accordance with the settled case-law of 5. Applying those principles in the recent the Court, the provisions of Title II of Kits van Heijningen case, which has been Regulation N o 1408/71 constitute a mentioned several times and concerns a case complete set of conflict rules, 7 whose similar to the present one, the Court, after purpose is not only to prevent several recalling that Article 13(2)(a) of Regulation national legislative systems from applying at N o 1408/71 provides that a person the same time but also to prevent persons employed in the territory of one Member falling within the scope of the regulation in State is to be subject to the legislation of question from being deprived of social that State 'even if he resides in the territory security protection, in the absence of legis- of another Member State', went on to stress lation applicable to them. 8 9 — Judgments in Case 110/79 Coonan v Insurance Officer 5 — Sec codified version of Regulation N o 1408/71 published [1980] ECR 1445, at paragraph 12 and in Case 266/78 in OJ C 138 1980, p. I; the provision in question essen- Brunori v Landesversicherungsanstalt Rheinprovinz [19791 tially coincides with Article I3(2)(c) of the current version ECR 2705, at paragraph 6. of trie regulation. 10 — Judgment in Case 276/81 Soziale Verzekeringsbank v 6 — I4b(4) of the consolidated version. ÄK!»erc[l982] ECR 3027, at paragraph 14. 7 — Judgment in Case 60/85 Luitjen v Raad vart Arbeid [1986] 11 — Judgment in Koks v Raad van Arbeid [1982] ECR 3013, ECR 2365, at paragraph 14. paragraph 10. 8 — Judgment in Case C-2/89 Kits van Heijningen v Bestuur 12 — Judgment in Kits van Heijningen, cited above, at paragraph van de Sociale Verzekeringsbank [WO] ECR 1-1775. 20.
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that that provision would have no practical the residence of the worker. Evidently, that effect if the residence requirement imposed does not apply only to a provision which by the legislation of the Member State in expressly lays down a different rule, such as whose territory the person is employed as a Article 76 of the Belgian law on accidents at condition of affiliation to the insurance work, but also to provisions which, if only scheme which it establishes could be relied indirectly, in fact lead to that result. In fact, on against the persons referred to in Article to allow the national legislature to have 13(2)(a). With regard to those persons, the recourse, in the case mentioned by that rule, effect of Article 13(2)(a) is to replace the to connecting factors other than those residency condition with a condition based indicated by the Community legislature on employment in the territory of the would be to deprive the provisions of Title Member State concerned. 1 3 II of Regulation No 1408/71 of practical effect.
The reasoning followed by the Court in relation to the provision mentioned above Consequently, from that point of view, ought in my view also to prevail in relation whichever legislation is applicable under the to Article 14 of the regulation which rules of private international law to the similarly substitutes for the condition that contract of employment, it cannot in any the person concerned be engaged on board event have the effect of rendering nugatory a vessel flying the flag of the Member State the conflict rules contained in Regulation in which the undertaking has its registered N o 1408/71, thus depriving of protection a office, a different condition based solely on person falling under the personal scope of the registered office of the undertaking and that instrument.
6. In the light of the foregoing considerations I p r o p o s e that the C o u r t should give the following answers t o the questions submitted by the Belgian C o u r t of Cassation:
1. T h e d e t e r m i n a t i o n of the legislation applicable t o the e m p l o y m e n t relationship between a w o r k e r a n d the u n d e r t a k i n g b y w h i c h he is employed falls outside the scope of R e g u l a t i o n N o 1 4 0 8 / 7 1 ;
2. T h e provisions of Title II of Regulation N o 1 4 0 8 / 7 1 , and in particular Articles 13(2)(b) ( n o w c) a n d Article 14(2)(c) n o w Article 14b(4), preclude the application t o persons covered by those provisions or to their beneficiaries of a provision in the national law of a M e m b e r State whereby affiliation t o a social security scheme is directly or indirectly subject t o the condition t h a t the person concerned is employed on board a vessel flying the flag of t h a t M e m b e r State.
13 — Kits van Heijntngen judgment cited above, at paragraph 21.
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