C-221/95

5. The question referred to the Court by the Tribunal du Travail, Tournai to enable 3. Inasti, the plaintiff in the main proceed- ings, considers that Mr Hervein was an employed person in France and a self- 1 — Council Regulation (EEC) N o 1390/81 of 12 May 1981 employed person in Belgium and that he was extending to self-employed persons and members of their families Regulation (EEC) N o 1408/71 on the application of therefore subject to the Belgian social social security schemes to employed persons and their fami- lies moving within the Community (OJ 1981 L 143, p. 1). 2 — Regulation (EEC) N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the * Original language: Spanish. Community (OJ English Special Edition 1971 (II), p. 416).

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it to resolve the dispute is worded as social security scheme for employed follows: or self-employed persons;

'Does self-employment (activité non- salariée) for the purposes in particular of Article 14a(2) of Council Regulation (EEC) ...'. N o 2001/83 of 2 June 1983 refer specifically to the activities of a self-employed person (travailleur indépendant) who is a national of a Member State?'

Community provisions 7. Title II of Regulation N o 1408/71, as extended by Regulation N o 1390/81 and amended and updated by Regulation N o 6. Article 1 of Regulation N o 1408/71, as 2001/83, contains a complete system of con- amended by Regulation (EEC) N o 2001/83 3 flict rules designed to determine the legisla- (hereinafter 'Regulation N o 2001/83'), pro- tion applicable to those coming within its vides as follows: scope. The general principle, as laid down in Article 13(1), is that a worker is to be subject to the legislation of one Member State only. Article 13(1) provides that:

(b) in the instances referred to in Annex VII, to the legislation of each of these Mem­ ber States, as regards the activity pursued in its territory.

9. Article 14c lays down special rules appli­ cable to persons simultaneously employed in the territory of one Member State and self- employed in the territory of another Mem­ 2. The detailed rules for implementing sub­ ber State. According to that provision, in the paragraph (b) of paragraph (1) shall be laid version in force at the material time: 4 down in a Regulation to be adopted by the Council on a proposal from the Commis­ sion.'

10. According to Article 14d,

' 1 . A person, who is employed simulta­ neously in the territory of one Member State

4 — Council Regulation (EEC) N o 3811/86 of 11 December 1986 ' 1 . The person referred to in ... [Article] amending Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self- 14c(l)(a) shall be treated, for the purposes of employed persons and to members of their families moving application of the legislation laid down in within the Community and Regulation (EEC) N o 574/72 laying down the procedure for implementing Regulation accordance with these provisions, as if he (EEC) N o 1408/71 (OJ 1986 L 355, p. 5), applicable from 1 January 1987, changed the wording of Article 14c so that it pursued all his professional activity or activi­ also regulated the pursuit of two or more activities carried ties in the territory of the Member State con­ out on an employed or a self-employed basis in the territory of two or more Member States. cerned.'

14. The Belgian Government points out in its observations that in Regulation N o 13. Mr Hervein and Hervillier SA observe 1408/71 there is no definition of the terms that Mr Hervein's activity in both France employment and self-employment, although and Belgium during the period in respect of these terms are to be found in Articles 13 which Inasti demands payment of contribu- and 14a of Regulation N o 1408/71, which tions was self-employment, since by acting determine the legislation applicable to differ- as director of various companies at all times ent categories of persons coming within its

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scope. In the Belgian Government's opinion, N o 1408/71 refers to activity pursued by a as Community law now stands, the sole cri­ worker in a self-employed capacity and terion for determining whether a worker is regarded as such by the legislation of the employed or self-employed is to be found in Member State in which he pursues that activ­ the social security scheme to which the ity and that the way in which an activity is worker is affiliated in his own country. In the treated in one Member State should have no present case, the defendant is French and effect on the way in which the same activity recognizes that in France he is affiliated to is treated in another Member State. the social security scheme for employed per­ sons. Accordingly, the only solution must be that he is to be regarded as such a person for the purposes of the application of Regulation N o 1408/71.

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In its analysis of the present case, the French definition of 'self-employed person' in Government observes that, like persons Article 1 of Regulation N o 1408/71 applies. simultaneously pursuing employment in the territory of two or more Member States — a situation governed by Article 14(2) of Regu- lation N o 1408/71 — or self-employment in the territory of two or more Member States — a case provided for in Article 14a(2) of Regulation N o 1408/71 —, a person who is simultaneously employed and self-employed in the territory of two or more Member States is subject to the legislation of a single 16. The Commission considers that there is Member State only, in accordance with a fundamental distinction between 'employ- Article 14c(a), unless one of the situations ment' and 'self-employment' for the pur- envisaged in Article 14a(b) applies, where the poses of the application of Title II of Regu- activities are pursued in two or more of the lation N o 1408/71. Specifically, in order to States referred to in Annex VII to Regulation ascertain the articles of Title II of Regulation N o 1408/71, in which case the person con- N o 1408/71 applicable to Mr Hervein and, cerned will be subject to the legislation of therefore, the social security legislation to both States at the same time. which he is subject, it is first necessary to ascertain whether his occupational activities were pursued in an employed or a self- employed capacity.

Since, as Community law now stands, it is question in the present case are of one type for the legislation of each Member State to or the other, it will be necessary to examine determine the conditions governing the right whether the activities in question are or obligation to be affiliated to a social secu­ regarded, in the Member State in whose ter­ rity scheme or a particular branch of such ritory they are pursued, as constituting scheme, it will be necessary to refer to the employment or self-employment for the pur­ provisions of the national law applicable in poses of affiliation to its social security the particular case. schemes. It submits that the answer to the national court should be that, for the appli­ cation of Article 14a(2) of Regulation N o 1408/71 'self-employment' should be regarded as consisting of activities treated as such by the social security legislation of the Member State in whose territory the activi­ 17. The Commission goes on to state that ties are pursued. the term 'worker' in Article 48 of the Treaty, which has a Community meaning and must be defined according to objective criteria that characterize the working relationship, taking account of the rights and duties of the per­ sons concerned, does not coincide with the 18. In the de Jaeck case, 5 which concerns abovementioned concept of worker for the the interpretation of the term 'employed' for purposes of the application of Regulation the purposes of the application of Title II of N o 1408/71. This is because Article 48 of the Regulation N o 1408/71, the Commission Treaty confers rights of Community origin was asked by the Court to answer a number on migrant workers, which makes it neces­ of questions, and I consider that the replies sary to have a Community definition allow­ given are relevant to the resolution of the ing the persons enjoying those rights to be present case. determined. Article 51 of the Treaty, on the other hand, only provides for the coordina­ tion of national social security schemes. In order to determine who can rely on the coordinating provisions in Regulation N o 1408/71 it is necessary in each case to see who is affiliated to those schemes. Whether First of all, the Court asked the Commission the person concerned is a person covered by to indicate whether it considered that the Regulation N o 1408/71 will therefore concepts of employed persons or self- depend on his being affiliated to a social employed persons in Tile II of the Regu­ security scheme for employed persons or for lation were to be interpreted in the same way self-employed persons. as 'employed person' and 'self-employed person' in Article 1(a). Secondly, the Com­ mission was asked to provide examples to illustrate its argument that if the concepts of employment and self-employment for the

19. As regards the first question, the Com­ mission states that in order to ascertain whether a person is to be regarded as an employed person or a self-employed person, or as not belonging to either of those catego­ ries, it will be necessary to apply the answers to the following questions: first, is the per­ son concerned a person covered by the 20. In response to the second question, the Regulation (Title I)? If so, which legislation Commission suggests the following is applicable to him (Title II), this possibly examples: being different from the legislation applied to classify him as an employed person or a self- employed person? 6 Finally, under that legis­ lation, is the person concerned insured as an employed person, a self-employed person, or insured at all? 7 (1) Under German social security legisla­ tion, students are affiliated to the social security scheme applicable to employed 6 — This was what happened in Case C-121/92 Staatssecretaris van Financien ν Zinnecker [1993] E C R 1-5023. Mr Zin­ persons. For this reason, pursuant to necker, a German national residing in Germany, w h o worked on a self-employed basis for approximately half of the time Article 1(a) of the Regulation, they are in Germany and the other half in the Netherlands, had, deemed to be employed persons and fall under Netherlands legislation, to be regarded as coming within the scope ratione personae of the Regulation (Title I), within its scope rattorte personae. If, in but the legislation applicable to him was the legislation of the Member State in which he resided (Article 14a of Title II). order to apply Title II, it were necessary 7 — The conclusion reached by the Court in the Zinnecker case to follow the specific criteria of labour cited in footnote 6 above was that Mr Zinnecker was not ' insured in either State since German legislation provided law, it would be impossible to decide only for voluntary insurance for persons in that situation whether they were employed or self- and because Mr Zinnecker had chosen not to subscribe t o that insurance. employed, since they do not pursue any

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As regards the first of those terms, the Court As regards the third term, the Court held in has consistently held that '... the concept of Hoekstra that the expression 'wage-earner worker within the meaning of Article 48 of or assimilated worker' used by Regulation 12 the Treaty has a specific Community mean­ No 3 had a meaning only within the ing. To come within the definition of worker framework and limits of the concept of a person must pursue an activity which is 'workers' provided for in the Treaty to the effective and genuine to the exclusion of application of which that regulation was lim­ activities of such a small scale as to be ited; that the said expression, which was intended to clarify the concept of 'workers' regarded as purely marginal and ancillary. for the purposes of Regulation N o 3, had The essential characteristic of the employ­ therefore, like that concept, a Community ment relationship is that for a certain period meaning; that even if, for the sake of argu­ a person performs services for and under the ment, the expression 'wage-earner or assimi­ direction of another person in return for lated person' appeared in the legislation of which he receives remuneration.' 9 each of the Member States, it could not pos­ sibly have a comparable meaning and role, so that it was impossible to establish the mean­ ing by reference to similar expressions which might appear in national legislation; and that the concept of 'wage-earner or assimilated person' had thus a Community meaning, referring to all those who, as such and under whatever description, were covered by the different national systems of social secu­ rity. 1 3 The principle thus established by the Court was incorporated in Regulation N o 1408/71, in Article 1(a).

24. However, that definition has not thus far been provided by the legislature, since, as I 25. I agree with the Commission that the have said, it is not to be found in any of the factor determining whether a person comes Community regulations on social security within the scope of the Regulation is affilia­ for migrant workers. As far as the case-law is tion to a Member State's social security concerned, although the Court stated in Van scheme for employed workers or self- Poučke 14 that an activity pursued as an offi­ employed workers and that in determining, cial by a person coming within the scope of for the purposes of application of the Regu­ Regulation N o 1408/71 was employment for lation, whether an activity is to be regarded the purposes of Article 14c, it did not define as employment or self-employment, it will what was to be understood by such an activ­ be necessary to ascertain how the person is ity in general terms. N o r did it do so in van treated by the Member State in question Roosmalen, 1 5 where it held that the concept when it applies its social security legislation. of 'self-employed person' within the mean­ ing of Article 1(a) (iv) of the Regulation, cov­ ering insurance on a voluntary basis, applied

27. However, it should also be pointed out that, although in principle Member States are 29. Consequently, if it is necessary to ascer­ competent to determine the conditions gov­ tain in each case whether activity is classified erning affiliation to their national social secu­ as 'employment' or 'self-employment' by the rity schemes, they are not empowered to social security legislation of the Member determine the territorial scope of their own State in whose territory it is pursued, then in legislation, since that is entirely a matter for the present case Mr Hervein at the same time Community law. In the Ten Holder case 1 7 pursues an activity as an employed person in the Court stated that the provisions of Title France — since he is affiliated to the scheme II constituted a system of conflict rules the for employed persons in that Member State effect of which was to divest the legislature — and an activity as a self-employed person of each Member State of the power to deter­ in Belgium, since the legislation of that State mine the ambit and conditions for the appli­ provides that, by virtue of the activity which cation of its national legislation so far as the he pursues in its territory, he must be affili­ persons who were subject thereto and the ated to the scheme for self-employed per­ territory within which the provisions of sons. national law took effect were concerned.

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31. In accordance with that provision, except to the extent that it required that per­ Mr Hervein is simultaneously subject to the son to contribute to the financing of a social French legislation as regards the activity pur­ security institution which was unable to pro­ sued in France, in respect of which he is vide him with additional advantages in affiliated to that Member State's scheme for respect of the same risk and of the same 19 employed persons, and to the Belgian legisla­ period. In the van der Vecht case the tion as regards the activity pursued in Bel­ Court also held that the purpose of Article gium, in respect of which he is regarded as 12 of Regulation N o 3 was to avoid the affiliated to the scheme for self-employed simultaneous application of national legal persons and for which the corresponding systems which might needlessly increase the contributions are being claimed in the main social security contributions of both the proceedings. Quite simply, that means that, worker and the employer, and that Article 12 pursuant to Article 14c(l)(b) of Regulation prohibited Member States other than that in N o 1408/71 and point 1 of Annex VII to whose territory a worker was employed that Regulation, Mr Hervein must be affili­ from applying their social security legislation ated to and pay contributions to social secu­ to such worker, where to do so would lead rity schemes in two Member States. to an increase in the charges borne by work­ ers or their employers without any corre­ sponding supplementary social security pro­ tection.

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contemplate that possibility. The regulation he acted as director of a Belgian insurance of the detailed rules for implementing sub­ company, which was a subsidiary of the Brit­ paragraph (b) which, according to Article ish company which employed him. By rea­ 14c(2), were to be laid down in a regulation son of this activity, Mr Stanton was auto­ to be adopted by the Council on a proposal matically affiliated by the Belgian authorities from the Commission, was effected by to the Belgian social security scheme for self- Regulation (EEC) N o 3811/86 (hereinafter employed persons. In due course Inasti 'Regulation N o 3811/86'), which became requested M r Stanton and the insurance applicable on 1 January 1987. 2 1 company, which was jointly liable, to pay the corresponding contributions. The second case concerned Mr Wolf, a German national, who was employed in the Federal Republic of Germany as a chemical engineer and at the same time was a director of a company whose registered office was in Belgium. Inasti requested that he and the Belgian com­ 33. I wonder to what extent that regulation pany pay contributions to the social security can be regarded as compatible with the prin­ scheme for self-employed persons on ciples governing freedom of movement for account of the directorship. workers and the right of establishment laid down in Articles 48 and 52 of the Treaty as interpreted by the Court, which has had to rule on various occasions on their applica­ tion to factual situations very similar to the present one, but with the difference that at the material time Regulation N o 1390/81 had still not entered into force.

36. In each of those cases the Court Articles 48 and 52 of the Treaty therefore observed that '[t]he first paragraph of Article preclude such legislation.' Taking into 52 of the Treaty requires the abolition of all account, furthermore, that that national pro­ restrictions on the freedom of establishment vision afforded no additional social protec­ of nationals of a Member State in the terri­ tion to the persons concerned, who were tory of another Member State. It is settled affiliated to the social security scheme of the law that that is a directly applicable rule of Member State in which they pursued their Community law.' The Court went on to principal employment, the Court concluded point out that freedom of establishment was that 'the impediment to the pursuits of occu­ not confined to the right to create a single pational activities in more than one Member establishment within the Community, but State may not in any event be justified on entailed the right to set up and maintain, that basis'. 2 5 subject to observance of the relevant profes­ sional rules of conduct, more than one place of work within the Community and that was 'equally true in respect of a person who is employed in one Member State and wishes, in addition, to work in another Member State in a self-employed capacity'. 2 4

25 — Ibid., paragraphs 13 to 15. 24 — Cited in footnotes 22 and 23, above, paragraphs 10 to 12. 26 — Case C-53/95 Kemmler [1996] ECR 1-703.

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schemes in question. Furthermore, an excep­ Member States but also that the fact of pur­ tion such as that in Article 14c(l)(b) of suing, whether fraudulently or lawfully, an Regulation N o 1408/71 to the principle laid activity as a self-employed person outside down in Article 13, which provides that per­ the Member State concerned would give rise sons to whom Regulation N o 1408/71 to an unintentional principle of indirect har­ applies are to be subject to the legislation of monization of the social security schemes of a single Member State only, cannot be con­ the Member States referred to in Annex VII trary to Articles 48 to 52; in order for that to to the Regulation, which would be contrary be so, the application of that provision to the Treaty and which, at length, might would have to produce undesired secondary adversely affect the social security schemes effects or practical problems that would of those States and increase their deficits. As place migrant workers at a disadvantage regards additional social protection, the compared with their national counterparts, Council observes that in some cases the two­ whereas it has not been established that the fold contribution, which is calculated application of that provision has raised any according to the income received in each problem within the Administrative Commis­ Member State concerned, may bring addi­ sion on Social Security for Migrant Workers. tional protection by way of pension rights or family allowances.

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43. I cannot accept the Council's arguments. Regulation N o 1408/71, is required to join As the preamble to Regulation N o 1390/81 and pay contributions to both the French states, '... freedom of movement for persons, scheme for employed persons and the Bel- which is one of the cornerstones of the gian scheme for self-employed persons, in so Community, is not confined to employed far as the activity pursued in each territory is persons but also extends to self-employed concerned. persons in the framework of the freedom of establishment and the freedom to supply ser- vices' (second recital); '... the coordination of the social security schemes applicable to self- employed persons is necessary to attain one of the objectives of the Community ...' (third recital); and '... in the sphere of social secu- rity, the application of national legislations 45. The difference between the position of only would not afford sufficient protection Mr Stanton, Mr Wolf and Mr Kemmler, on to self-employed persons moving within the the one hand, and Mr Hervein's position, on Community; ... in order to make the free- the other hand, is that, for the former, the dom of establishment and the freedom to obligation to be affiliated to a second social provide services fully effective, the social security scheme of a Member State when security schemes for self-employed persons they were already affiliated to the social should be coordinated' (fifth recital). security scheme in another Member State was the result of the application of national legislation, the Belgian legislation in their case, while for Mr Hervein the same obliga- tion is imposed by Community legislation.

47. In that regard, it is necessary only to add and self-employed in two Member States did that in the Stanton, Wolf and Kemmler cases not pay lower contributions than a person the Court apparently considered that making pursuing both activities in a single Member the pursuit of occupational activities outside State, which would have allowed him to the territory of a single Member State more enjoy an unwarranted advantage compared onerous might be justified where the with his competitors whose activities were national legislation afforded some additional not divided between two Member States. I social protection. However, in application of shall now consider, taking Mr Hervein's case the principle of the hierarchy of norms and as an example, whether the rule in Article in the light of what is laid down in Articles 14c(l)(b) achieves that purpose. 48 and 52 of the Treaty, the purpose of which is to facilitate the pursuit of occupa­ tional activities throughout the territory of the Member States, there is no justification whatsoever for the Council, in making use of its legislative powers, to place Community nationals at a disadvantage where they wish to extend their activities to the territory of certain other Member States. 49. As I explained at the beginning of this Opinion, for a number of years Mr Hervein pursued a very similar activity in France, his country of residence, and Belgium: he was simultaneously chairman/director general and director of various companies. He comes within the scope of Regulation N o 1408/71, since it is established that he is affiliated to the social security scheme for employed per­ sons in France. In Belgium, a person pursing 48. In my view, that argument is most telling an activity such as Mr Hervein's is required when it comes to examining the compatibil­ to be affiliated to a self-employed person's ity of Article 14c(l)(b) with Articles 48 and scheme. 52 of the Treaty. However, it is not the only argument. At the material time, six States out of a Community of ten members were men­ tioned in Annex VII to Regulation N o 1408/71. 3 3 In the instances of Belgium, Den­ mark (for residents), France, Greece and Italy, a person self-employed in one of those States and employed in any other State was subject to the legislation of two States. For When it comes to applying Title II of the Germany, that applied only to a person self- Regulation in order to determine the legisla­ employed in farming. The Council states that tion to which he is subject, it is easy to the purpose of those rules was to ensure that establish that his situation falls within Article a person who was simultaneously employed 14c. Were it not for subparagraph (l)(b) of that article and the abovementioned Annex VII, Mr Hervein would be subject only to the French social security legislation, which 33 — Upon the accession of Spain and Portugal, both States were would regard him as an employed person added to the list. The same happened upon the accession of Austria, Finland and Sweden. and treat him as though he pursued all his

activities in France. The same solution would State would mean in each case that the be reached if, instead of pursuing an activity amount of the contributions would be lower. as a self-employed person in Belgium, he did so in Germany, unless the activity was farm- ing, or in Denmark, provided that he was not resident in that country, or in the United Kingdom or Ireland, to take a few more examples. O n the other hand, the situation of someone like Mr Hervein is compara- To my mind, that argument of the Council is tively worse if he plans to pursue that self- even less convincing in the light of the employed activity in Belgium, as we have amendments to Regulation N o 1408/71 seen, in Italy or in Greece, since he is simul- introduced by Regulation N o 3811/86. From taneously subject to the legislation of two its entry into force on 1 January 1987, Member States, which entails a twofold obli- although a person who is simultaneously gation to join and pay contributions to social employed in one Member State and self- security schemes in respect of the activities employed in another of the States referred to pursued in each territory. in Annex VII is subject to the legislation of both States, it is by no means clear whether that is so only as regards the activity pursued in each territory, since this point was abol- ished in both the indents of which Article 14c(b) was comprised. Furthermore, the new paragraph (2) of Article 14d provides that a person in this situation is to be treated, for the purpose of determining the rates of con- tributions to be charged to self-employed workers under the legislation of the Member State in whose territory he is self-employed, as if he pursued his paid employment in the 50. The Council's argument that, if Article territory of that Member State: when it 14c(l)(b) did not exist, a person in comes to applying the national legislation, a Mr Hervein's position would enjoy a privi- provision so worded may have the effect of leged position compared with his competi- reducing the rate of contribution as well as tors who pursued all their activities in the increasing it. same Member State because he would be required to pay lower contributions cannot be accepted for a number of reasons: first, because I infer that it is precisely to avoid that result that Article 14d(l) provides that a person who is employed simultaneously in one Member State and self-employed in another Member State and who is subject to 51. The Council also claims that the raison the legislation of the first State is to be d'être for the provision is to ensure that the treated as if he pursued all his activity in that obligation to pay contributions to a social State; and, secondly, because the way in security scheme for self-employed persons is which contributions are calculated differs not avoided by, for example, a Belgian greatly from one Member State to another, national who, simply by crossing the fron- so that it is rather imprudent to state at the tier, seeks paid employment in another outset that affiliation in a single Member Member State. I am inclined to believe that

that was in fact the reason why the Council, treated differently depending on the place in at that time, introduced its amendment of the which they intend to pursue those activities. Commission's proposal; however, as has already been shown, the effect of the provi­ sion is to impede the pursuit of occupational activities outside the territory of a Member 53. It is clear from all the foregoing that State. Article 14c(l)(b) and Annex VII to Regu­ lation N o 1408/71 should be declared invalid in so far as they provide that a person who is simultaneously employed in the territory of one Member State and self-employed in the territory of one of the Member States referred to in Annex VII is to be subject to the legislation of each of those Member States. I would add that a person residing in Bel­ gium, where he is both employed and self- employed, will perhaps be in a similar situa­ tion if he remains in that State or if, pursuant to Article 14c(l)(b), he moves to France in 54. The fact that the national court has order to take up paid employment there and referred a question on interpretation in this continues to be self-employed in Belgium. case does not prevent the Court from exam­ However, that situation will be very different ining the validity of a provision. Of crucial from the situation of a person residing, for importance here is the principle established example, in Germany and employed in that by the Court in the judgment the Schwarze State whilst being self-employed in Denmark case, 3 4 in which it held that: 'the conclusion or in any of the other Member States not to be drawn from the ... questions ... is that included in the list in Annex VII. the [national] court is concerned less with the interpretation of the Treaty or of a meas­ ure adopted by a Community institution than with obtaining a preliminary ruling on the validity of such a measure, which the Court is empowered to give by subpara­ graph (b) of the first paragraph of Article 177'; and in those cases 'it is appropriate for the Court to inform the national court at 52. Consequently, I must conclude that, once of its view without compelling the even if Article 14c(l)(b) may in certain cases national court to comply with purely formal have the effect that the person concerned has requirements which would uselessly prolong additional protection by way of pension the procedure ... and would be contrary to rights or maintains rights to death benefit [the] very nature [of Article 177]. Although acquired under the legislation of each of the [such] strict adherence to formal require­ Member States, the provision not only places ments may be defended in the case of litiga­ obstacles in the way of the pursuit of occu­ tion between two parties whose mutual pational activities in different Member States but also emphasizes the disparities already deriving from their national laws and has the 34 — Case 16/65 Schwarze ν Einfuhr-und Vorratsstelle für effect that nationals of the Member States are Getreide und Futtermittel [1965] ECR 877.

rights must be subject to strict rules, it invalid; in Roviello, 39 in which the national would be inappropriate to the special field of court had referred three questions for a pre- judicial cooperation under Article 177 which liminary ruling on the interpretation of Point requires the national court and the Court of 15 of Section C in Annex VI to Regulation Justice ... to make direct and complementary N o 1408/71, the Court first interpreted the contributions to the working out of a provision and then declared it invalid; in the decision'. 35 Weiser case, 40 too, in which a French court had referred a question for a preliminary rul- ing on the interpretation of Article 11(2) of Annex VIII to the Staff Regulations of Offi- cials of the European Communities, the 55. Moreover, Advocate General Darmon Court of Justice declared in its judgment that expressed a similar view in his Opinion in that provision was invalid. Case C-37/89: '... it is for the Court to verify the validity of a legislative provision even though the question referred to it does not ask for this to be done, once the Court con- templates interpreting the provision in a way which may cause it to be rendered invalid'. 36 The same happened in Case 313/86, 41 Case C-204/88 42 and Case C-117/88, 43 in which the Court of Justice examined of its own motion the validity of Community provi- 56. And that is precisely what the Court has sions which the national courts had asked it done over the years. In the Strebl case, 37 for to interpret without finding anything to example, where a Belgian court had sought affect their validity. the interpretation of Article 46(3) of Regu- lation N o 1408/71 and Decision N o 91 of the Administrative Commission on Social Security for Migrant Workers, the Court first considered the validity of those provi- sions and declared that they were incompat- ible with Article 51 of the Treaty; in Roquette Frères 38 the Court held that six of 57. As regards the consequences of Article the questions referred by the national court 14c(l)(b) and Annex VII to Regulation N o for the interpretation of certain provisions of 1408/71 being declared invalid, the Court has regulations indirectly requested an appraisal already resolved that 'where it is justified by of the validity of those provisions and pro- overriding considerations, the second para- ceeded to examine them and declare them graph of Article 174 gives the Court discre- tion to decide, in each particular case, which

Since the Stanton, Wolf and Kemmler judg­ 45 ments, in which the Court provided the interpretation of Articles 48 and 52 of the Treaty that served as the basis for that decla­ 58. Consequently, I suggest that the Court ration of invalidity, were delivered in 1988 should declare, as it did in Pinna, 46 that (the first two) and 1996 (the third), and since overriding considerations of legal certainty in all those cases the facts examined in the involving all the interests at stake, public and main proceedings dated from periods prior private, in principle militate against calling in to the entry into force of Regulation N o question affiliation and contributions pay­ 1390/81 (which introduced both Article 14c able in application of Article 14c(l)(b) in and Annex VII into Regulation N o 1408/71), respect of periods prior to the delivery of the it is appropriate, in the present case, to take judgment declaring that provision invalid, into account, exceptionally, the fact that the except as regards workers or those entitled Member States which, following the entry under them who have already commenced into force of that regulation on 1 July 1982, legal proceedings or made an equilvalent required persons who were already affiliated claim in accordance with applicable national to a scheme for employed persons in another law prior to that date.

Conclusion

I n t h e light of the foregoing considerations, I suggest that t h e C o u r t ' s answer t o the question referred b y the Tribunal d u Travail de T o u r n a i s h o u l d be as follows:

'Self-employment' referred t o in Article 14a(2) of C o u n c i l Regulation ( E E C ) N o 1408/71 of 14 J u n e 1971 o n t h e application of social security schemes t o e m p l o y e d

(2) The invalidity of those provisions cannot be relied on to call in question affili- ation and the contributions payable, in application of the provision declared invalid, in respect of periods prior to the delivery of the judgment establishing the invalidity, except as regards workers or those entitled under them who have already brought legal proceedings or made an equivalent claim in accord- ance with applicable national law prior to that date.

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