C-71/93

* Original language: Danish. 1 — Regulation No 1408/71, in the consolidated version annexed to Regulation No 2001/83 (OJ 1983 L 230, p. 6) applicable to this case. 2 — See Regulation No 3795/81 (OJ 1981 L 143, p. 1).

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4. The matter was brought before the 6. In the event that he should be covered by Arbeidsrechtbank (Labour Court), Bruges, the regulation, Mr Van Poučke claimed that before which Mr Van Poučke claimed that, the regulation contains no choice-of-law rule on its wording, the Belgian insurance scheme applicable to his case. for self-employed persons could not be applicable to him because he did not exercise any activity in Belgium as a self-employed person and Regulation No 1408/71 could not, as the competent Belgian insurance institution maintains, lead to the contrary 7. The Arbeidsrechtbank, Bruges, did not result. uphold Mr Van Poucke's claim. The court found on the evidence that he was covered by the regulation because, in respect of med­ ical care expenses, he was covered by a gen­ eral insurance scheme governed by the regu­ lation. With regard to the choice-of-law 5. Mr Van Poučke claimed, first, that he did issue, the court referred to the rule in Arti­ not fall within the scope of Regulation cle 13 of the regulation that persons are to be No 1408/71. subject to the legislation of a single Member State only. The court found that the proper choice-of-law rule must be the rule in Article 14c that a person who is simulta­ neously employed in the territory of one Member State and self-employed in the terri­ The basis for that argument is, in particular, tory of another Member State is to be sub­ the rule in Article 2 (3) of the regulation, ject to the legislation of the Member State in which provides that the regulation is to the territory of which he is engaged in paid apply to civil servants 'where they are or employment. Accordingly, Mr Van Poučke have been subject to the legislation of a must be covered by the Belgian insurance Member State to which this Regulation legislation. applies' and Article 4 (4), according to which the regulation is not to apply 'to special schemes for civil servants'.

2. Must Article 13 (2) (d) and Article 14c of Regulation No 1408/71 be inter­ preted as meaning that the employment as a civil servant of a person falling within the scope of the regulation is to be treated as activities as a person "employed" for the purposes of the application of Article 14c. (b) If so, does the Court consider that it may be inferred from the fact that a specific branch of social security, namely medical care under the sick­ ness and invalidity insurance, is governed solely as regards its administration by legislation of a 3. Must Title II of Regulation No 1408/71, Member State to which Regulation including Article 14c thereof, be inter­ No 1408/71 applies, that persons preted as meaning that the fact that a referred to in Article 2 (3) of Regu­ person who ranks among the persons lation No 1408/71 are or have been covered by the regulation in respect of in fact subject to the legislation of a his activities as a person "employed", Member State to which that regula­ on account of which he is insured only tion applies, as provided for in Arti­ for a single risk (in this case medical cle 2 (3) aforesaid? care under the sickness and invalidity insurance) is obliged with regard to his activities as a self-employed person to pay insurance premiums only in respect of the same risk, although the applicable national legislation provides for com­ pulsory and indivisible insurance for several risks.'

(c) Should the reply to questions (a) and (b) be in the affirmative, must the word "where" in Article 2 (3) of Regulation No 1408/71 be inter­ preted as meaning that the regula­ 9. Only the Commission has submitted tion is applicable to the persons observations to the Court. The Commis-

10. In introduction, it is worth noting that the unstated premiss of the case, as it is sub­ 12. That case concerned a situation where a mitted to the Court, is that only Mr Van self-employed person, Mr Zinneker, exer­ Poucke's affiliation to the Belgian insurance cised his activity both in the Netherlands scheme with regard to cover for medical care and in Germany. When Regulation expenses is capable of bringing him within No 1408/71 was extended to cover self- the scope of application of the regulation. It employed persons in 1982, the competent is thus accepted that Mr Van Poucke's activ­ Netherlands insurance institution decided ity as a self-employed doctor in the Nether­ that he should pay contributions under lands is not relevant in that respect. That Netherlands law in respect of his activity in assumption is presumably based on the fact the Netherlands. Mr Zinnecker was resident that Mr Van Poucke would not be covered in Germany, where he was not covered by by the Netherlands insurance scheme, since the insurance scheme for self-employed per­ that links insurance obligations to a fixed sons, since that was voluntary and he had address and Mr Van Poucke resides in Bel­ not joined the scheme. He claimed that he gium. Since, under Article 2 (1), the regula­ was not covered either by the Netherlands tion is only to 'apply to employed or self- insurance scheme, because he did not fulfil employed persons who are or have been the requirement under Netherlands law of subject to the legislation of one or more residence in the Netherlands in order to be Member States' Mr Van Poucke cannot be covered by the scheme. The question was covered by the regulation by that means. thus whether, in those circumstances, he was

17. With a single exception, which is not rel­ evant in a case such as this, the system of the 13. The Court accordingly took the view regulation is, as stated, that persons who are that under the regulation's choice-of-law covered by the regulation are to be subject to rules Mr Zinnecker was covered by Nether­ the legislation of a single Member State only. lands or German law. It referred to That precludes Mr Van Poucke being cov­ Article 14a (2), according to which a person ered by both Belgian and Netherlands legis­ normally self-employed in the territory of lation.

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18. None of the choice-of-law rules in the The Commission refers to the fact that nor­ regulation expressly states the choice of law mally it is not significant whether one or in a situation where a person is in paid another choice-of-law rule is applied and employment as a civil servant in one State considers that the choice of law in this case and is self-employed in another. should be determined on the basis of Article 14c (a).

The two rules which are most pertinent in determining the choice of law are Article 13 Application of that provision presupposes (2) (d) and Article 14c (a). that a civil servant within the meaning of the provision is regarded as a person who is in paid employment. The Commission refers to the fact that a civil servant under the system of the Treaty is principally regarded as an employee, that is to say a person in paid The first provision states: 'Subject to Arti­ employment. If that was not the case, the cles 14 to 17: (d) civil servants and persons exception from the Treaty's general rule on treated as such shall be subject to the legisla­ freedom of movement for workers contained tion of the Member State to which the in Article 48 (4) with regard to persons administration employing them is subject.' employed in the public service would not have been necessary.

Conclusion

21. I therefore suggest that the Court should reply to the questions referred to it as follows:

(1) Regulation No 1408/71 should be interpreted as meaning that a person who is a civil servant in Belgium and resident there and is simultaneously self-employed in the Netherlands is covered by the regulation;

(2) under the choice-of-law rules contained in the regulation it follows that the leg­ islation applicable to such a person is the Belgian legislation.

3 — See on this point the judgment in Case 143/87 Stanton [1988] ECR 3877 and Joined Cases 154/87 and 155/87 Wolf [1988] ECR 3897.

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