C-425/93

CALLE GRENZSHOP ANDRESEN

JUDGMENT OF THE COURT (Second Chamber) 16 February 1995 "

In Case C-425/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Schleswig-Holsteinisches Landessozialgericht (Germany) for a preliminary ruling in the proceedings pending before that court between

Calle Grenzshop Andresen GmbH & Co . KG

and

No 574/72 of 21 March 1972 laying down the procedure for implementing Regu­ lation (EEC) No 1408/71, in the versions codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Second Chamber),

composed of: E A. Schockweiler (Rapporteur), President of the Chamber, G. E Mancini and G. Hirsch, Judges,

Advocate General: C. O . Lenz, Registrar: H . A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— Calle Grenzshop Andresen GmbH & Co. KG, by Reinhold Steinhusen, Rechtsanwalt, Flensburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Calle Grenzshop Andresen GmbH & Co. KG, the Italian Government, the United Kingdom, represented by Philippa Wat­ son, Barrister, and the Commission at the hearing on 24 November 1994,

after hearing the Opinion of the Advocate General at the sitting on 19 January 1995,

gives the following

Judgment

By order of 15 September 1993, received at the Court on 18 October 1993, the Schleswig-Holsteinisches Landessozialgericht (Higher Social Court, Schleswig- Holstein) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Article 14(l)(a) and (2)(b)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Article 12a of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, in the versions codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p . 6).

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CALLE GRENZSHOP ANDRESEN

6 On 9 February 1993 Calle appealed against that judgment to the Schleswig- Holsteinisches Landessozialgericht. In the course of that appeal Calle produced a certificate dated 27 January 1993 on form E 101, as provided for in Article 12a(2)(a) of Regulation No 574/72, from the Danish Ministry of Social Affairs stat­ ing that Mr Wandahl fulfilled the requirements of Article 14(2)(b) of Regulation No 1408/71 since 1 January 1985. Calle claimed that, by reason of the mandatory nature of Community law, the AOK was bound by that certificate and, conse­ quently, could no longer argue that Mr Wandahl had not in fact pursued an activ­ ity in Denmark.

7 The Schleswig-Holsteinisches Landessozialgericht considered that the outcome of the dispute depended on the interpretation of the provisions of Community law relied on by the parties. It therefore decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

'1 . Is there a posting within the meaning of Article 14(l)(a) of Regulation (EEC) No 1408/71, or is it equivalent to a posting, if a Danish worker residing in the Kingdom of Denmark and employed exclusively by an undertaking whose place of business is in the Federal Republic of Germany is posted by that undertaking to Denmark to perform work there for that undertaking, on a regular basis and for several hours each week, the anticipated duration of the posting not being limited to 12 months?

2. Is a person normally employed in the territory of two Member States, within the meaning of Article 14(2) of Regulation (EEC) No 1408/71, if he is employed exclusively by an undertaking whose place of business is in the Fed­ eral Republic of Germany and, in connection with that employment, regularly pursues his activity partly (for several hours each week) in the territory of the Kingdom of Denmark?

s In its first two questions, which should be considered together, the national court wishes to ascertain whether the situation of a Danish worker, residing in Denmark and employed exclusively by an undertaking whose seat is in Germany, who in the course of that employment relationship, regularly, for several hours each week and for a period not limited to twelve months pursues his activity partly in Denmark, falls under Article 14(l)(a) or Article 14(2)(b)(i) of Regulation No 1408/71.

9 The Court has consistently held that the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute a complete and uniform system of conflict rules, the aim of which is to ensure that workers moving within the Community are to be subject to the social security scheme of only one Mem­ ber State, in order to prevent more than one legislative system from being appli­ cable and to avoid the complications which may result from that situation (see, in particular, Case C-71/93 Van Pou ke v Rijksinstimt voor de Sociale Verzekeringen der Zelfstandigen [1994] ECR 1-1101, paragraph 22).

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CALLE GRENZSHOP ANDRESEN

io Article 14(l)(a) of Regulation No 1408/71 provides that a person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to per­ form work there for that undertaking is to continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed twelve months and that he is not sent to replace another person who has completed his term of posting.

the Member States where he is pursuing his activity, a person normally employed in the territory of two or more Member States is to be subject to the legislation of the Member State in whose territory the registered office or place of business of the undertaking or individual (in the singular) employing him is situated.

is Accordingly, it should be stated in reply to the first two questions that the situa­ tion of a Danish worker, residing in Denmark and employed exclusively by an undertaking with its seat in Germany, who in the course of that employment rela­ tionship, regularly, for several hours each week and for a period not limited to twelve months pursues his activity partly in Denmark, falls under Article 14(2)(b)(i) of Regulation No 1408/71.

The third question

is In its third question the national court asks whether, 'activity' within the meaning of Article 14(2)(b)(i) of Regulation No 1408/71 covers the term 'employed'.

i7 That question must be answered in the affirmative.

is It follows from the reply given to the first two questions that Article 14(2)(b)(i) of Regulation No 1408/71 is also applicable to a person normally employed in two or more Member States for one and the same undertaking.

22 Since that is not the case, the fourth question has become devoid of purpose .

Costs

23 The costs incurred by the German and Italian Governments, the United Kingdom and the Commission of the European Communities, which have submitted obser­ vations to the Court, are not recoverable. Since these proceedings are, for the par­ ties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

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JUDGMENT OF 16. 2. 1994 — CASE C-425/93

On those grounds,

R. Grass F A. Schockweiler

Registrar President of the Second Chamber

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