C-53/95
ECLI:EU:C:1996:5
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INASTI v KEMMLER
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 January 1996"
1. The Tribunal du Travail, Tournai (Bel- in respect of 1981 and the first half of 1982. gium) seeks a preliminary ruling on the The defendant declined to pay those contri- interpretation of the provisions of the EEC butions on the ground that during those Treaty on the free movement of persons and periods he was affiliated to the German services in order to give judgment in relation compulsory social security scheme for to events which occurred before the entry self-employed persons, a fact which he has into force on 1 July 1982 of Council Regu- proved. lation (EEC) N o 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Council Regu- lation (EEC) N o 1408/71 on the application of social security schemes to employed per- sons and to members of their families mov- ing within the Community ' (hereinafter 'Regulation N o 1390/81'). 3. In order to determine the dispute, the national court considers that an answer is needed to the following question:
2. The facts of the case before the national court may be summarized as follows: the defendant, Hans Kemmler, is a German law- yer who was habitually resident and prac- 'Is the effect of Articles 48, 51, 52 and 59 of tised his profession in Germany, while at the the Treaty of Rome that before 1 July 1982 a same time maintaining a residence in Bel- Member State (in this case Belgium) could gium. He was also a member of the Bar of not require nationals of another Member Brussels, where he practised in partnership State (in this case the former Federal Repub- with other lawyers. According to the file, the lic of Germany) who were pursuing the same Institut National d'Assurances Sociales pour professional activity as self-employed per- Travailleurs Indépendants (hereinafter 'Inas- sons both in its territory and in the former ti'), the plaintiff in the main proceedings, Federal Republic of Germany, where they called on Mr Kemmler to pay BFR were habitually resident and subject to the 331 271 by way of unpaid contributions social security scheme, to pay contributions to the Belgian social security scheme for self- employed persons, particularly since such 5 Original language: Spanish. contributions could not entitle them to any 1 — OJ 1981 L 143, p. 1. additional social security cover?'
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4. In short, the national court wishes t o judgments in Stanton2 and Wolf,i and it k n o w whether, before that date, a Member suggests that the answer to be given to the State was entitled to require a national of national court is that Article 52 of the Treaty another Member Sute, who practised the precludes a Member State from requiring same profession in two Member States as a persons pursuing an activity of the same self-employed person, to pay contributions kind in another Member State, where they to its social security scheme for self- are habitually resident and are affiliated to employed persons, having regard to the fact that State's social security scheme for self- that he was already affiliated to an equivalent employed persons, to pay contributions to social security scheme in the other Member its own social security scheme for self- State, where he was habitually resident, and employed persons where that obligation that the payment of contributions to a sec- affords them no additional social protection. ond social security scheme would not have afforded him any additional protection.
7. Regulation N o 1390/81 extended to self- 5. O n l y the Commission has submitted employed persons certain principles set out observations in this case. It points out, first, in Council Regulation (EEC) N o 1408/71 of that, pursuant to Article 2 thereof, Regu- 14 June 1971 on the application of social lation N o 1390/81 does not give rise to any security schemes to employed persons and rights as regards the period prior to its entry their families moving within the Communi- into force on 1 July 1982. Since the periods ty 4 (hereinafter 'Regulation N o 1408/71') for which contributions are claimed in the which had previously been applicable only main proceedings preceded that date, the to employed persons. O n e of those princi- Commission takes the view that Regulation ples is that, as far as social security is con- N o 1390/81 is not applicable to them and cerned, a worker is to be subject to the leg- that, in order to answer the question submit- islation of only one Member State. ted, it is necessary to refer to the provisions of the Treaty, in particular Article 52, since Mr Kemmler has been self-employed in both Germany and Belgium.
8. Mr Kemmler's specific circumstances are covered by Anicie 14a(2) of Regulation
6. T h e Commission refers to previous deci- sions of the Court of Justice on Article 52 of 2 — Case 143/87 [1988] ECR 3877. the Treaty which it considers to be relevant 3 — Joined Cases 154/87 and 155/87 [1988] ECR 3897. to the present question, in particular the 4 — O ] , English Special Edition 1971 (II), p. 416.
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No 1408/71, as amended by Regulation covered by Article 52, which upholds the No 1390/81, according to which: right of establishment in the following terms:
'Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State 'A person normally self-employed in the ter- in the territory of another Member State ritory of two or more Member States shall shall be abolished by progressive stages in be subject to the legislation of the Member the course of the transitional period. Such State in whose territory he resides if he pur- progressive abolition shall also apply to sues any part of his activity in the territory restrictions on the setting up of agencies, of that Member State. ...' branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the 9. Regulation N o 1390/81, by virtue of Arti- right to take up and pursue activities as self- cle 2 thereof, conferred no rights in respect employed persons and to set up and manage of periods prior to its entry into force. Since undertakings, in particular companies or it entered into force on 1 July 1982, that is to firms within the meaning of Article 58, say after the period for which Inasti is calling under the conditions laid down for its own for the payment of contributions, its provi- nationals by the law of the country where sions are not applicable to the main proceed- such establishment is effected, subject to the ings — which, for that reason, must be deter- provisions of the Chapter relating to capital.' mined exclusively by reference to the provisions of the Treaty.
11. The Court of Justice has already held — in Klopp 5 — that 'freedom of establishment is not confined to the right to create a single establishment within the Community ... [but also] includes the freedom to set up and 10. In view of the account of the facts given maintain, subject to observance of the pro- by the national court, I consider, like the fessional rules of conduct, more than one Commission, that Mr Kemmler's situation is place of work within the Community'. not covered by Articles 48 and 51 of the Treaty, which refer to freedom of movement for workers, or by Article 59, on the free- dom to provide services, but that it is 5 — Case 107/83 Klopp [1984] ECR 2971, paragraph 19.
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12. In 1988 the Court of Justice gave judg- the national legislation contravenes the prin- ment in Stantonb and "Wolf.7 The facts ciple that equal treatment is to be accorded which gave rise to the questions submitted to nationals of other Member States laid by the national courts — also Belgian — in down in the second paragraph of Article those cases were very similar to those of this 52 of the Treaty as regards access to activities case. The issue in those cases, as in this, was as a self-employed person and the exercise the application of the same national legisla- thereof; secondly, whether it may constitute tion, namely Article 3(1) of Royal Decree a restriction on freedom of establishment; N o 38 of 27 July 1967 governing social secu- and finally, if so, whether it should be rity for self-employed persons. Pursuant to regarded as justified. that provision, any natural person pursuing an occupational activity otherwise than under a contract of employment must pay contributions to the social security scheme. In short, the obligation to pay contributions derives from the activity carried on, not from the place where the person concerned works.
15. As far as the principle of equal treatment is concerned, my view is the same as that expressed in Stanton and Wolf, namely that 13. In those cases, the Belgian authorities that national legislation applies without dis- required a British national, employed in the tinction t o all self-employed persons work- United Kingdom, and two German nation- ing in Belgium and gives rise to no discrimi- als, employed in Germany, who at the same nation, n o t even indirectly, on grounds of time held the office of directors of Belgian nationality. First, the obligation to pay con- companies and were therefore regarded as tributions arises merely from the fact of self-employed persons in Belgium, to pay being self-employed in that country and, sec- contributions to the social security scheme ondly, there is no reason why a provision to for self-employed persons. The periods for that effect should have an impact solely or which such payment was required also ante- mainly o n nationals of other Member States. dated the entry into force of Regulation N o 1390/81. The only difference between those cases and Mr Kemmler's lies in the fact that the latter's activity in the other Member State, Germany in his case, was pursued as a self-employed person
16. Secondly, it must be borne in mind that 14. In answering the question from the according to the judgments in Stanton 8 and national court, I shall first consider whether Wolf, 9 'the first paragraph of Article 52 of
6 — See note 2 above. 8 — See note 2 above, paragraph 10. 7 — See note 3 above. 9 — See note 3 above, paragraph 10.
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the Treaty requires the abolition of all account in its territory, without any possibil- restrictions on the freedom of establishment ity of an exemption from the payment of of nationals of a Member State in the terri- such contributions for someone who also tory of another Member State. It is settled works on his own account in another Mem- law that it is a direcdy applicable rule of ber State and is already contributing to an Community law.' The Court infers from this equivalent social security scheme in that that the Member States are required to com- State, adversely affects those who, like Mr ply with that provision even where — as in Kemmler, extend their professional activity those two cases and in Mr Kemmler's case — beyond the latter's territory. in the absence of Community legislation in force at the material time governing the social security status of self-employed per- sons, the Member States were still competent to legislate in that area.
19. As we know, '... as one of the fundamen- tal principles of the Treaty, freedom of movement for persons may be restricted only by rules which are justified in the gen- eral interest and are applied to all persons 17. It should also be borne in mind that 'the and undertakings pursuing those activities in provisions of the Treaty relating to the free the territory of the State in question, in so movement of persons are ... intended to facil- far as that interest is not already safeguarded itate the pursuit by Community nationals of by the rules to which a Community national occupational activities of all kinds through- is subject in the Member State where he is out the Community, and preclude national established'. n It is necessary, therefore, to legislation which might place Community check whether in the case of Mr Kemmler, citizens at a disadvantage when they wish to who was already paying contributions in extend their activities beyond the territory of Germany, there are compelling reasons in the a single Member State'. 1 0 public interest such as to justify the obliga- tion to pay contributions in Belgium as well.
18. In view of that case-law, it is beyond doubt that legislation of a Member State, of 20. I consider that, in the event that there is the kind described, which imposes the a public interest in a Member State in ensur- obligation to pay contributions to its scheme ing that self-employed persons working in for self-employed persons on any person its territory are affiliated to its social security engaged in an economic activity on his own scheme, it must consist in the concern to
10 — See Stanton and Wolf, cited in notes 2 and 3 above, respec- tively, paragraph 13 in both cases. 11 — Case C-106/91 Ramrath [1992] ECR 1-3351, paragraph 29.
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ensure that such persons do not lack cover amount to a tax burden for him, in that it when certain risks materialize. Since, in the would afford him no additional social pro- same period, Mr Kemmler was already cov- tection. ered by an equivalent social security scheme in another Member State, it follows that the application of the Belgian provision is not 22. It follows that the application of a justified by reasons relating to the public national rule like the one at issue to a interest in his case. national of another Member State in circum- stances like those of Mr Kemmler, making it more burdensome for him to pursue his pro- fession in the territory of more than one Member State, constitutes an unjustified 21. I should also add that the application of obstacle to his freedom of establishment, and the contested national provision to the is therefore incompatible with Article 52 of defendant in the main proceedings would the Treaty.
Conclusion
2 3 . I n v i e w of t h e foregoing considerations, I suggest that the C o u r t of Justice give t h e following a n s w e r t o t h e question referred t o it b y the Tribunal d u Travail, Tour- nai:
A r t i c l e 52 of t h e E E C Treaty m u s t be i n t e r p r e t e d as p r e c l u d i n g a M e m b e r State f r o m r e q u i r i n g a national of another M e m b e r State, w h o is p u r s u i n g t h e same activity s i m u l t a n e o u s l y in b o t h States, t o p a y c o n t r i b u t i o n s t o its social security s c h e m e for s e l f - e m p l o y e d p e r s o n s , w h e r e the p e r s o n c o n c e r n e d d e m o n s t r a t e s that, o v e r t h e s a m e p e r i o d , h e was affiliated t o a n equivalent social s e c u r i t y scheme in t h e o t h e r M e m b e r State, w h e r e he habitually resides, and that the p a y m e n t of con- t r i b u t i o n s t o a s e c o n d social security s c h e m e c a n n o t give rise t o a n y additional social p r o t e c t i o n for h i m .
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