C-60/93
ECLI:EU:C:1994:56
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ALDEWERELD
OPINION OF ADVOCATE GENERAL LENZ delivered on 10 February 1994 *
Mr President, According to the findings of the Hoge Raad Members of the Court, der Nederlanden, Mr Aldewereld had his residence (within the meaning of those social security provisions) in 1986 in the Nether lands. Mr Aldewereld brought an action before the Gerechtshof, Arnhem, contesting the decision of the Netherlands authorities A — Facts which required him to pay contributions for that year to the Netherlands social security scheme. However, the Gerechtshof dismissed his action. Mr Aldewereld applied to the Hoge Raad der Nederlanden for review of that decision. 1. Mr Aldewereld, the plaintiff in the main proceedings, is a Netherlands national. According to the judgment of the Hoge Raad der Nederlanden, which made the ref erence for a preliminary ruling, he took a job in 1985 with an undertaking established in Germany, which posted him immediately to Thailand, where he worked throughout 3. The Hoge Raad der Nederlanden referred 1986. On the basis of that employment the the following question to the Court of Jus German authorities charged social security tice under Article 177 of the EEC Treaty: contributions under German law. The rele vant contributions in respect of unemploy ment, old-age pension, and accident insur ance were deducted from Mr Aldewereld's salary. However, the German authorities rejected an application for child allowance on the ground that, in their opinion, Mr 'Do the rules forming part of European Aldewereld did not satisfy the requirements Community law which are designed to under German law. achieve freedom of movement for workers within the Community, and in particular the rules on determining the national legislation applicable set out in Title II of Regulation (EEC) No 1408/71 of the Council of the European Communities of 14 June 1971, 2. Under Netherlands law, persons who preclude the collection of contributions have their residence in the Netherlands are under the social legislation of the State of required to pay social security contributions. residence from a person who resides in one Member State and, in the employment of an undertaking established in another Member * Original language: German. State, works exclusively outside the Member
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States, on the basis of which employment he proceedings before this court — the Nether is liable topay contributions under the social lands, Italy, the Commission and Mr Alde- legislation of the other Member State?' wereld — quite rightly agree that that is the case here and Mr Aldewereld therefore falls within the scope ratione personae of the reg ulation. The decisive factor is that the social security provisions of (at least) one Member State applied to him. The fact that at the B — Analysis material time Mr Aldewereld was working outside the Community is therefore not rel 3 evant in that regard.
4. The essential question in these proceed ings is whether Community law permits a person in Mr Aldewereld's situation to be 6. Provisions concerning the determination subjected to the social security provisions of of the legislation applicable are contained in more than one Member State. It is obvious Title II (Article 13 et seq.) of the regulation. that an answer to the question should be Article 13(1) of the regulation states: sought in Regulation (EEC) No 1408/71 of the Council of 14 June 1971, 1 which is referred to in the national court's question and which aims to coordinate the social 2 security schemes of the Member States. 'Subject to Article 14c, persons to whom this regulation applies shall be subject to the leg islation of a single Member State only. That legislation shall be determined in accordance 4 with the provisions of this Tide.'
5. Article 2(1) of Regulation No 1408/71 provides that the regulation applies inter alios to employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States. All the parties to the 7. It is clear that Title II of Regulation No 1408/71 contains no provision directly applicable to this case. I assume however that the social security contributions paid by Mr 1 — Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to Aldewereld in Germany were compulsory employed persons, to self-employed persons and to mem bers of their families moving within the Community (OJ 1971 L 149, p . 2) as amended by Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p . 6). 2 — The text of the regulation applicable at the material time 3 — Cf. the judgment in Case 300/84 Van Roosmalen v Bestuur (1986) must be taken as the basis. The regulation has been van de Bedrijfsvereniging voor de Gezondheid [1986] amended several times since then (most recendy by Council ECR 3097, paragraph 30). Regulation (EEC) No 1945/93 of 30 June 1993, OJ 1993 4 — Article 14c contains a special rule (not relevant in this case) L 181, p . 1). However those amendments are not relevant to applicable to persons who are, at the same time, employed in the question considered here. one Member State and self-employed in another.
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under the German legislation. The court Nor do the special rules provided in Art making the reference also appears to have icle 14 cover the present situation. 5 Art made that assumption, although its judgment icle 14(1) concerns cases in which a person, does not expressly say so. The following who is employed in a Member State, is observations therefore apply only to that sit posted by his employer temporarily to uation. another Member State. Article 14(2) contains a special rule for cases in which a person is normally employed in two or more Member States.
At the hearing the representative of the Netherlands Government did indeed express slight doubts whether Mr Aldewereld had in Article 17 of the regulation provides that fact been required by law to pay social secu two or more Member States (or the compe rity contributions in Germany. If those tent authorities of those States or the bodies doubts were well founded, that would of designated by those authorities) may by course place the question considered here in agreement provide for exceptions to the pro a quite different light. If the contributions visions of Articles 13 to 16 in the interest of made in Germany were contributions to a certain categories of persons or of certain voluntary insurance scheme, the conflict persons. However, there does not appear to with the compulsory insurance under Nether be any such agreement which could be lands law would doubtless be resolved on applied to the case in point. the basis of Regulation No 1408/71 (cf. Art icle 15). However, that is a question of fact, which is a matter to be determined by the national court.
9. The Netherlands Government concludes from those circumstances that Title II of Regulation No 1408/71 either does not apply at all in the present case or at least does not contain any provision determining the legis 8. Firstly, the general rule in Article 13(2)(a) lation applicable. It contends that in such a is inapplicable to this case; it provides that situation it is exclusively the Member States subject to Articles 14 to 17, an employed which are competent to determine whether a person is to be subject to the legislation of person such as Mr Aldewereld is subject to the Member State in which he is employed, their social security systems. It argues that, even if he resides in another Member State or although in the present case that would if his employer has its registered office or result (partially) in double insurance, there is place of business in another Member State. That rule cannot apply to this case, because Mr Aldewereld was employed in a non- 5 — The special rules for self-employed persons (Article 14a) and member country. mariners (Article 14b) are inapplicable to the case in point.
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no gap in Title II, because the aim of the 11. Since that title contains no provision provisions on which Regulation No 1408/71 which could be applied directly to the case in is based (Articles 48 to 51 of the EEC point, it must be asked whether an appropri Treaty) is merely to bring about free move ate solution can be reached by way of inter- ment within the Community. pretation. In that respect, we should proceed on the basis that Regulation No 1408/71 provides essentially three criteria to deter mine the legislation applicable: a connection with the legislation of the Member State in which the person is employed ('the State of employment'), a connection with the legisla tion of the Member State in which the employed person resides (the 'State of resi dence'), and a connection with the legislation of the Member State in which the employer has its registered office or place of business 10. I am unable to adopt that argument. It is ('the State of establishment'). 8 not necessary to consider whether, as the Italian Government has submitted, the mere fact that Mr Aldewereld began working for an undertaking from another Member State, which then sent him to a non-member coun try, is to be regarded as the exercise of the 12. As I have already mentioned, under right to freedom of movement guaranteed by Article 13(2)(a) it is basically the legislation Article 48 of the EEC Treaty. In any case, of the State of employment which is decisive. the decisive factor is that according to the As the Commission has correctly pointed case-law of the Court of Justice the provi out, if before his posting to Thailand Mr sions of Title II of Regulation No 1408/71 Aldewereld had first — even only for a short constitute 'a complete system of conflict period — been employed in Germany, there 6 rules'. The aim of the provisions of Title II would have been hardly any doubt that the is inter alia to ensure that the persons con German social security legislation was to be cerned 'shall be subject to the social security applied. However, in view of the fact that Mr scheme of only one Member State, in order Aldewereld was posted by his employer to prevent more than one national legislative directly to Thailand, the criterion of the State system from being applicable and to avoid of employment cannot be used. the complications which may result from 7 that situation'. Since Mr Aldewereld falls within the scope ratione personae of Regula tion No 1408/71, that must also apply to him. The legislation applicable must there fore be determined, in his case too, on the basis of Title II of Regulation No 1408/71. 13. A situation in which it would not be sensible to take the State of employment as
6 — Judgment in Case C-2/89 Kits van Heijningen [1990] ECR 8 — Article 16 (a special rule for persons employed by diplomatic I-1755, paragraph 12; judgment in Case C-196/90 De Paep missions and consular posts and auxiliary staff of the Euro [1991] ECR I-4815, paragraph 18. pean Communities) provides certain other connecting crite 7 — Judgment in Case 60/85 Luijten v Raad van Arbeid [1986] ria (eg. the law of the Member State of which the employed ECR 2365, paragraph 12. person is a national).
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the relevant criterion is also the basis for the States (Article 14(2)(b)(i)); if the person does special rule in Article 14(2). That provision not reside in any of the Member States applies to those cases in which a person is where he is pursuing his activity, the legisla normally employed in the territory of two or tion of the State of establishment is to be more Member States. applied (Article 14(2)(b)(ii)).
Article 14(2)(a) provides that in the situa According to that provision, the legislation tions which it covers the legislation of the of the State of residence is therefore to be State of establishment 9is to be applied. On applied, if the person is also employed in the other hand, the legislation of the State of that Member State. residence is to be applied, if the person is mainly employed in the State in which he resides. It seems that the Italian Government deduces from that provision that, where there is a choice between the legislation of the State of establishment and that of the State of residence, priority should be given 15. However, in my opinion, a convincing to the former. solution for cases of the type considered here cannot be derived from either of the two lastmentioned provisions. It can only be stated that, where the adoption of the legis lation of the State of employment does not lead to practicable results, the regulation declares that, in some cases, the legislation of 14. However, it should be pointed out that the State of establishment is to apply and, in Article 14(2) (a) only applies to a narrowly other cases, that of the State of residence. A defined category of persons, namely persons general principle, according to which one who are 'members of the travelling or flying criterion is basically preferable to the other, personnel of an undertaking which operates cannot be determined. international transport services for passen gers or goods by rail, road, air or inland waterway'. Article 14(2) (b) applies to all other persons. It provides that the legislation of the State of residence is to be applied if the person is employed partly in that State, or if he is employed by several undertakings or As the Commission has argued, the regula employers who have their registered offices tion is actually'neutral' in that respect. With or places of business in different Member regard to cases of the type being considered here, the regulation has a gap which cannot be satisfactorily filled by interpreting its pro visions. The Commission has correctly 9 — If the person is employed by a branch or permanent repre pointed out that there are several conceivable sentation outside the State of establishment, it is however the legislation of the Member State in which the branch or per ways in which that gap could be filled in an manent representation is situated which is to be applied (Article 14(2)(a)(i)) . appropriate manner. The solution to that
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problem should therefore be left ultimately made by the person whose interests are most to the legislature. In its written observations directly concerned. In that context, it may the Commission stressed that it was aware also be pointed out that Mr Aldewereld him that it will have to draw up an appropriate self has indicated in his written observations proposal for that purpose. that, in the event of him having to make a choice, the German legislation could be applied.
16. In those circumstances the Commis sion's proposal that, until such legislation comes into effect, it should be left to the 10 In addition, as a glance at Article 16 employed person to choose between the shows, the possibility of a choice between application of the legislation of the State of the legislation of several Member States is in establishment (in this case Germany) and no way alien to the scheme of Regulation that of the legislation of the State of resi No 1408/71. That solution has moreover the dence (in the present case the Netherlands) additional advantage of not prejudging in seems to me to be the most sensible solution. any way future rules to be adopted by the That solution enables the decision to be legislature.
C — Conclusion
17. I therefore propose that the Court give the following answer to the question submitted by the Hoge Raad der Nederlanden:
The rules forming part of European Community law, and in particular the provi sions of Title II of Regulation (EEC) No 1408/71, preclude that an employed per son resident in a Member State, who is employed by an undertaking established in another Member State and works exclusively outside the Member States, be subject to the social security legislation of more than one of the Member States concerned. Until the applicable legislation has been determined by the Community legislature, a person in such a situation may choose between the application of the social secu rity legislation of one or other of the Member States concerned.
10 — See footnote 8, above.
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