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3. The activity of opera singer, of such long-standing tradition in the history of western culture 2and such a difficult pro- It is in this way that the questions which the fession to pursue, 3has not on this occasion Tribunal du Travail (Labour Court), Brus- sels, has referred to the Court of Justice for a preliminary ruling can be summarised. In 2 — The earliest surviving opera is Euridice, composed by Jacopo Peri in the late 16th century, since all that remains order to answer them, it will be necessary of Dàfne, a dramatic fable by the same composer, is a few fragments of music, and L'Amfiparnaso, by Orazio Vecchi, to interpret Articles 14a(1)(a) and 14c(a) of which is regarded by some as the first example of lyrical Regulation (EEC) No 1408/71 1 (herein- opera, is simply a large-scale exercise in polyphony, consisting of short songs, pantomimes, madrigals and after 'Regulation No 1408/71'). dialogues. Euridice was first performed on 6 October 1600 at the Palazzo Pitti in Florence for the marriage of Maria de' Medici to Henry IV of France. 3 — In L'Arte del Canto (Vergara, Buenos Aires, 1991, p. 116) * Original language: Spanish. (originally published by Rusconi Libri S.p.a., 1989), Gius- seppe Di Stefano writes: 'Becoming an opera singer in the 1 — Regulation (EEC) No 1408/71 of the Council of 14 June fullest sense of the term seemed unattainable. Singing an 1971 on the application of social security schemes to aria was easy, but walking on stage in costume, moving in employed persons, to self-employed persons and to mem- the correct way, remembering the notes and their musical bers of their families moving within the Community, as value, memorising all the words and injecting feeling into amended and updated by Council Regulation (EEC) them, while at the same time constantly searching for the No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), amen- most beautiful sounds, purer even than those of the ded in turn by Council Regulation (EEC) No 3811/86 of instruments themselves, and, finally, following the conduc- 11 December 1986 (OJ 1986 L 355, p. 5). tor without being seen to do so, seemed ... horrendous!'

had the impact it frequently has on the (hereinafter 'Regulation No 574/72'), sensibilities of many people. 4 which lays down the procedure for imple- menting Regulation No 1408/71. Those certificates covered the period during which the performers were under contract to TRM and stated that they were self- employed in the United Kingdom, that they 4. The contracts signed by most of the would be self-employed for the period of above persons stated that rehearsals would their contracts in Belgium, and that be held from 4 to 22 January 1994 and that throughout that period, they would remain the performances would take place from subject to United Kingdom legislation in 23 January to 5 February 1994, giving a accordance with Article 14a(1)(a) of Reg- total period of employment of 25 days. The ulation No 1408/71. conductor likewise worked from 21 to

5. While the contracts were still in force, or they had worked in Belgium. once the litigation had commenced, the plaintiffs produced Form E 101 certificates, issued by the competent institution in the United Kingdom, in accordance with Arti- cle 11a of Regulation (EEC) No 574/72 5 7. The plaintiffs in the main proceedings seek an order requiring TRM, an artistic institution of indisputable international 4 — On pages 95 and 96 of his work (cited above), Di Stefano describes how, durine his military service in Frugarolo, a prestige, 6 to reimburse them for the province of Alessandria, on the eve of the Second World amounts deducted from their fees by way War, he was summoned by a medical officer who ordered him to sing. 'I don't think I have ever heeded a conductor's criticism quite so diligently as I did then.

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of social security contributions, on the 2. What is the relevant unit of time which ground that they were deducted in error should be taken into account in defin- since the plaintiffs remained subject to ing the term "simultaneously" in Arti- United Kingdom social security legislation cle 14c of R e g u l a t i o n (EEC) pursuant to Article 14a(1)(a) of Regulation No 1408/71, or by what criteria can No 1408/71. this term be defined?

3. (a) (i) Does Form E 101, the issue of which is provided for, in parti- cular, by Articles 11a and 12a(7) II. The questions referred of Regulation No 2001/83, 7 have binding force as regards the legal consequences attested to therein: 8. In order to resolve this dispute, the Tribunal du Travail, Brussels, stayed the proceedings pending before it and referred the following questions to the Court of — with respect to the competent Justice for a preliminary ruling: institution of the Member State in which the second activity is pursued?

'1. (a) Does the concept of "work" in Article 14a(1)(a) of Regulation — with respect to the person (EEC) No 1408/71 refer to any employing a worker pursuing work performed, whether as an an activity in two Member employed or self-employed person, States? the duration of which does not exceed 12 months?

(ii) If so, until when?

Article 13 ...'

'General rules Article 14

1. Subject to Article 14(c), persons to whom this regulation applies shall be 'Special rules applicable to persons, other subject to the legislation of a single than mariners, engaged in paid employ- Member State only. That legislation ment shall be determined in accordance with the provisions of this Title.

Article 13(2)(a) shall apply to the following 2. Subject to Articles 14 to 17: exceptions and circumstances:

(a) a person employed in the territory of 1 (a) A person employed in the territory one Member State shall be subject to of a Member State by an under-

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whose legislation is to remain applicable regarding this case, which have to do shall issue a certificate stating that the self- mainly with the procedure followed for employed person shall remain subject to obtaining a ruling from the Court on the that legislation up to a specified date: refusal of the Belgian social security insti- tution to recognise the effectiveness of a Form E 101 certificate issued by the institution of another Member State which certifies that the person concerned is nor- (a) at the request of the self-employed mally self-employed in that State, that he person in cases referred to in Arti- intends to carry out work of a specified cles 14a(1) and 14b(2) of Regulation duration in another Member State, and [No 1408/71]; that, for the duration of that work, he will continue to be subject to the social security legislation of the Member State whose institution has issued the form. ...'

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national social security institution) (herein- annex to its reply, which the ONSS sent to after 'the ONSS'), in which the power of TRM in November 1995. Enclosed with execution upon property is vested, refuses that letter is an assessment of the contribu- to recognise the validity of Form E 101 tions payable by two British performers certificates. (who are not parties to the main proceed- ings) cancelling a previous assessment in which the performers concerned had been found — erroneously, it is claimed — not to be liable for contributions in Belgium. 14. The latter fact is confirmed by the The ONSS's position, the letter states, is Commission in its observations and is based on a note of 21 May 1993 from the abundantly illustrated in the documents then Director-General of Social Security, contained in the file submitted by the Mrs G. Clotuche, the substance of which defendant. It is established, for example, the ONSS considers it is bound to apply that counsel for the performers sent a letter rigorously. The note is worded as follows: to the ONSS on 16 February 1994 request- ing repayment of the contributions which TRM had deducted from his clients' fees and then deposited in the coffers of the ONSS; that the Director of TRM asked the 'I have the honour to inform you that I Director-General of the ONSS, in a letter of have asked the International Affairs 1 March 1994, whether it would accept the Department to find a solution to the Form E 101 certificates issued by the problem of British self-employed persons United Kingdom social security institution; within the EEC, since it affects other and that, on 2 September 1994, the ONSS countries in addition to Belgium. Until gave its reply, which contained the follow- such time as a solution has been found for ing comments: the EEC as a whole, it is clear to me that temporary migration by self-employed per- sons cannot be permitted.'

present proceedings. I would point out, tion of any failure to fulfil the obligations however, that the application for reimbur- deriving therefrom with a view to bringing sement of the contributions deducted in it to an end ...'. 12 error was brought before the Tribunal du Travail, Brussels, on 18 September 1995, and the order by which that court referred questions for a preliminary ruling was received at the Court Registry on 7 May 19. In view of the position of the compe- 1997. tent Belgian authorities with respect to social security, that is to say their refusal to recognise the intended effects of Form E 101, which was introduced by the Admin- istrative Commission to make it easier for Member States to comply with the provi- 17. It is not my intention in making these sions of Regulations No 1408/71 and comments to criticise the Commission for No 574/72, the question arises whether it having suspended the infringement proce- would not have been more appropriate, in dure which it had initiated against Belgium. the interests of the effective and uniform Nor do I seek to call into question its application of Community law, for the having exercised in this case the powers Commission to continue with the infringe- conferred on it by Articles 155 and 169 of ment procedure it had already initiated, the EC Treaty, since the Commission is at regardless of the existence of the dispute in liberty to decide whether or not to initiate the main proceedings before the Belgian an infringement procedure and, having courts, which is an indisputable fact, and done so, whether or not to pursue it. The the reference for a preliminary ruling to the Court has held in this respect that, as Court of Justice by the national court guardian of the Treaty, the Commission required to give judgment in that dispute. alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. 11 V. Examination of the questions referred

A. The first question 23. TRM contends that the term 'work' covers the pursuit of any economic activity irrespective of its classification in employ- ment law or social security law, provided 21. By the first question, paragraphs (1) that its duration does not exceed 12 months and (2) of which should, in my opinion, be and that the person who has procured the answered jointly, the national court seeks service remains the same throughout that to ascertain whether the term 'work' in period. Like the plaintiffs, it proposes that, A r t i c l e 1 4 a ( 1 ) ( a ) of R e g u l a t i o n in the event of a different interpretation by No 1408/71 refers to the pursuit of any the Court, the nature of the work should be economic activity, whether as an employed determined by reference to the legislation or self-employed person. In the event that of the Member State in which the person is the Court interprets that term as referring normally self-employed. exclusively to work by self-employed per- sons, the court making the reference asks which legislation should be used to define that concept: the social security legislation of the Member State in which the person 24. The French Government submits that, concerned is normally self-employed or even though Article 14a(1)(a) does not that of the Member State to which he has expressly say so, the term 'work' must be moved in order to perform work. interpreted as referring exclusively to work by self-employed persons and that it is for the social security legislation of the Mem- ber State in which that work is performed to determine whether it is paid employment 22. The plaintiffs in the main proceedings or self-employment. maintain that the term at issue, which is not defined anywhere in Regulation No 1408/71, encompasses work by both employed and self-employed persons, and that, with a view to avoiding potential 25. The German Government and the abuse, the Court might make it clear that, Netherlands Government agree that the in order for a person to benefit from that term 'work' refers only to the activities of

27. The Commission points out first of all that Regulation (EEC) No 1390/81 13 (hereinafter 'Regulation No 1390/81'), which entered into force on 1 July 1982, Both Governments express concern at the and which extended to self-employed per- practice of labour being exported from the sons the application of Regulation United Kingdom. The legislation of that No 1408/71, was adopted by the Council State classifies such workers as self- in order to ensure the same protection for employed persons and its social security the self-employed as was enjoyed by institution issues them with Form E 101 employed persons. certificates certifying that United Kingdom legislation continues to be applicable under A r t i c l e 1 4 a ( 1 ) ( a ) of R e g u l a t i o n No 1408/71. Under cover of that form, It then explains that, in the first proposal it those workers move to Germany (where submitted to the Council in 1977, 14 the they are said to number 60 000) and to the provision at issue governed the situation of Netherlands, where they are employed in a worker who normally pursues his 'pro- the building industry. The Governments in fessional or trade activity' in the territory of question consider that a ruling by the Court a Member State and who 'engages in the to the effect that the term 'work' also provision of services' in the territory of covers an activity as an employed person would have serious consequences in so far as the social security contributions payable 13 — Council Regulation (EEC) No 1390 of 12 May 1981 by such workers would be significantly less, extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application if they continued to be subject to the United of social security schemes to employed persons and their Kingdom social security legislation, than families moving within the Community (OJ 1981 L 143, p. 1). those payable by employed persons in both 14 — OJ 1978 C 14, p. 9.

another Member State. In the second determined in accordance with the legisla- proposal, submitted in 1978, 15 the word- tion of the State in whose territory it is ing was as follows: 'A person who is pursued on a temporary basis. normally "self-employed" in the territory of a Member State and who "provides services" in the territory of another Mem- ber State ...'. As far as the Commission was concerned, it was clear that the scope of the provision at issue was to be confined to activities pursued in another Member State as a self-employed person. The Council, 28. At the end of the written procedure, the however, decided to use the term 'work' Court decided to put four questions to the without specifying, as it did in the case of Commission and gave it until 31 July 1998 employed persons temporarily posted to to reply. It was asked to state, first of all, another Member State and of mariners, whether the expressions 'provision of ser- whether the work had to be performed for vices'/'provides services' in the texts of its an undertaking or on a self-employed basis. proposals corresponded to the concept of In the light of the final text adopted by the provision of services within the meaning of Council, the Commission is of the opinion Articles 59 and 60 of the Treaty; secondly, that 'work' includes both forms of employ- whether, in its opinion, the plaintiffs in the ment. main proceedings had 'engaged in the provision of services'/'provided services' within the meaning ascribed to those expressions in its proposals; thirdly, whe- ther the expression 'work on his own account' in Article 14(b)(2) of Regulation By way of a solution to the problem of No 1408/71 corresponded to the concept potential abuse alleged by the German and of provision of services within the meaning Netherlands Governments, the Commis- of Articles 59 and 60 of the Treaty; and, sion proposes that the Member State to finally, which legislative system or systems whose legislation a worker is subject should is or are applicable to a person employed require, as a condition for issuing a Form E by an undertaking established in one 101 certificate, that that person has nor- Member State who uses a period of leave mally been self-employed in its territory to move to another Member State in order and has been lawfully insured under the to carry out temporary work on a self- social security scheme for self-employed employed basis. persons.

whose territory that activity is pursued, and has not yet been interpreted by the not to the concept of provision of services Court. 16 In order to determine its meaning, within the meaning of Articles 59 and 60 of therefore, it will be necessary to have the Treaty. Accordingly, the plaintiffs in the regard both to its wording, taking into main proceedings are to be deemed to have account the context in which it arises, and 'engaged in the provision of services'/'pro- to the objective it pursues. It is settled case- vided services' in Belgium within the mean- law of the Court that 'as regards the ing that must be ascribed to those expres- interpretation of the material provisions sions as used in the aforementioned propo- of Regulation [No 1408/71] ... , it is neces- sals only if the Belgian legislation con- sary to consider not only its wording but cerned regards the activity which they also its context and the aims pursued by the pursued in Belgium as self-employment. legislation of which it forms part'. 17 For the same reason, the expression 'work on his own account' in Article 14b(2) of Regulation No 1408/71 must be construed as referring to activities regarded as such by the social security legislation of the Mem- ber State whose flag the ship flies. With regard to the person normally employed in one Member State who uses a period of 31. Through the coordination of the var- leave to move to another Member State in ious national social security schemes, order to work on a self-employed basis effected by Regulation No 1408/71, the there, the Commission takes the view that Council considered it had discharged the this amounts to the simultaneous pursuit of obligation imposed on it by Article 51 of activities in the territory of two Member the EC Treaty for the purpose of establish- States. Consequently, if the second activity ing the free movement of workers. At the is regarded by the social security legislation time of the facts in the main proceedings, of the Member State in which it is pursued no less than ten articles in Title II of as employment, he will be subject to Regulation No 1408/71, Articles 13 to Article 14(2) of Regulation No 1408/71 17a, most of them comprising several and, if, on the other hand, that activity is paragraphs, were concerned with determi- regarded by the legislation of that State as nation of the legislation applicable to self-employment, his situation will be gov- migrant workers. All those provisions seek, erned by Article 14(c). by a technique of highly detailed lists, to prevent any possible conflict of rules, whether positive, by ensuring that workers are not simultaneously subject to several legislative systems, or negative, by ensuring that workers are not deprived of social

security protection owing to the absence of employed in the territory of another Mem- applicable legislation. The Court has con- ber State who are in one of the situations sistently held that 'the provisions of Title II provided for in Annex VII; such persons of the regulation constitute a complete and are to be subject to the legislation of each of uniform system of conflict rules the aim of the States. 20 which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to 33. The Court has made it clear that the avoid the complication which may arise compulsory nature of the application of the from that situation'. 18 conflict rules in Title II means that indivi- duals cannot choose the legislation which is to be applied to them 21 and that Member States cannot determine the extent to which their own legislation or that of another Member State is applicable. 22

32. The principle that a migrant worker is subject to the legislation of a single Mem- ber State is contained in Article 13 of 34. The other major principle governing Regulation No 1408/71. The Court has Title II of Regulation No 1408/71 is that a held that that principle excludes the possi- migrant worker must be subject to the bility of the overlapping of several national legislation of the Member State in which he legislative systems in respect of one and the pursues his economic activity (lex loci same period. 19 laboris). In accordance with Article 13(2), a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in another Member State or if the under- taking employing him has its registered

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office in another Member State. The same 37. In interpreting the provision in Regula- applies to a self-employed person who is tion No 3, 23 the predecessor to Regulation subject to the legislation of the State in No 1408/71, corresponding to the present which he works, even if he resides in the Article 14(1), the Court of Justice held that territory of another Member State. The 'the exception ... provided ... aims at over- legislation applicable to mariners must be coming the obstacles likely to impede free- that of the State whose flag is flown by the dom of movement of workers and at vessel on which they pursue their occupa- encouraging economic interpenetration tional activity. whilst avoiding administrative complica- tions for workers, undertakings and social security organisations. But for this excep- tion, an undertaking established in the territory of a Member State would be required to register its workers, normally subject to the social security legislation of that State, with the social security system of 35. That principle is inevitably subject to other Member States where they were sent certain exceptions, the rules governing to perform work of short duration. More- which are laid down in Article 14 in the over, the work would suffer more often case of employed persons, Article 14a in than not because national legislative sys- the case of self-employed persons, and tems generally exclude short periods from Article 14b in the case of mariners. I shall certain social benefits'. 24 now examine those three exceptions.

39. Article 14a(1) is devoted to determin- continue to be subject to the legislation of ing the legislation applicable to a person the Member State in which he is employed, normally self-employed in the territory of a when posted by the undertaking to which Member State who moves to another he is normally attached in order to perform Member State in order to perform work work on board a vessel flying the flag of there for a limited period. Provided that the another Member State, he must perform anticipated duration of that work does not the work for that undertaking. At the same exceed 12 months, a period which under time, paragraph (2) requires that, in order certain circumstances may be extended by a for a person to continue to be subject to the further 12 months, the person in question legislation of the Member State in which he continues to be subject to the legislation of is normally self-employed, when perform- the first Member State. This, precisely, is ing temporary work on board a vessel the provision at issue here, which, in the flying the flag of another Member State, he absence of clarification by the legislature, must perform that work on his own has given rise to differences of opinion account. among those who have submitted observa- tions as to whether it applies exclusively to work by self-employed persons or whether it may also include work by employed persons.

42. That symmetry is reflected in Decisions employer and the worker concerned of the No 128 2 5 and No 162 2 6 of the Adminis- conditions under which the posted worker trative Commission concerning the appli- may continue to be subject to its legislation, cation of Article 14(1) and Article 14b(1). and inform the employer of the possibility The first of those decisions points out that of checks being made throughout the one of the decisive criteria for the applica- period of posting so as to ensure that this tion of both provisions is the existence of a period has not come to an end. Such checks direct relationship between the undertaking may relate, in particular, to the payment of and the worker it engages, and in particular contributions and the maintenance of the the payment of a wage and the mainte- direct relationship. nance of the worker's relationship to the undertaking as an employee.

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it conceivable that, by electing to use the the Court in its judgment in De term 'work', the Council sought to indicate Jaeck, 27 from which it is clear that that that concept referred only to activity as the terms 'employed person' and 'self- a self-employed person? employed person' in the regulation refer to the definitions given them by Member States' social security legisla- tion, regardless of the nature of the activity for the purposes of employ- ment law. Furthermore, in the judg- ment in Martínez Sala, 28 the Court 46. In my view, this is not the proper held that, in the context of Article 48 interpretation of that term, for a number of of the Treaty and Regulation (EEC) reasons: No 1612/68, 29 a person who, for a certain period of time, performs ser- vices for and under the direction of another person in return for which he receives remuneration must be consid- ered to be a worker, whereas a person has the status of employed person — First, because the Council disregarded within the meaning of Regulation the Commission's proposals. I think, No 1408/71 where he is covered, even therefore, that it knowingly used a if only in respect of a single risk, much more general term than those compulsorily or on an optional basis, which had been suggested to it. by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of the existence of an employment rela- tionship.

— Secondly, because Article 14b, which was adopted at the same time as Article 14a in order to determine the legislation applicable to mariners in similar situations, states in paragraph (2) that work on board a vessel flying the flag of another Member State must be performed on a self-employed basis. 47. The fact that, in laying down rules governing the situation of a person nor- mally self-employed in a Member State who moves to another Member State in order to perform work for a specified period, the Council did not make the right

48. In De Jaeck, 30 the Court reached certain conclusions which are relevant to this case in so far as it held that, although it is true that the provisions of Title II of 50. The facts of this case illustrate perfectly Regulation No 1408/71 refer expressly to the practical application of the Court's persons who are employed or who are self- logical and consistent interpretation of the employed rather than to employed or self- scope rationae personae of the regulation employed workers, a logical and consistent and of its system of conflict-of-laws rules. interpretation of the scope ratione personae The plaintiffs in the main proceedings of the regulation and of the system of normally pursue an economic activity in conflicts-of-laws rules which it establishes the United Kingdom. Pursuant to the requires the terms in question to be inter- general principle, they should be subject preted in the light of the definitions of to the law of the place of work, which, in Article 1(a) of that regulation. Accordingly, their case, is that of the United Kingdom. just as categorisation as an 'employed United Kingdom social security legislation person' or 'self-employed person' for the regards that activity as 'self-employment' purposes of Articles 1(a) and 2(1) of the and the plaintiffs are accordingly 'self- regulation depends on the national social employed persons' for the purposes of security scheme under which the person is Regulation No 1408/71. Had the plaintiffs insured, 'a person who is employed' and 'a stopped performing that economic activity person who is self-employed' for the pur- in the United Kingdom and moved to poses of Title II of the regulation should be Belgium to perform it, because Belgian understood to refer to activities deemed social security legislation regards the activ- such by the legislation applicable in the ity of opera singer as paid employment, field of social security in the Member State they would have become employed persons in whose territory those activities are for the purposes of the regulation. In both pursued. cases, the concepts are totally independent from the classification of those activities under the employment law of each Member 30 — Cited in footnote 20 above, paragraphs 22 and 23. State.

The second condition imposed on mariners who are normally self-employed requires any work in which they engage on board a vessel flying the flag of another Member State to be performed on their own account 51. As I explained earlier, there are certain for the full duration of the posting. exceptions to the general principle that a worker is subject to the law of the place of employment which allow him to remain subject, for a certain period of time, to the legislation of the Member State where he normally works. The first condition applic- able to the recognition of that right is that the duration of the work on account of 52. However, in the case of workers nor- which he is moving to the other Member mally self-employed in a Member State State must not exceed 12 months, which who perform work in the territory of period may in certain circumstances be another Member State, Regulation extended by a further 12 months. That No 1408/71 does not appear to make their condition applies to all workers without right to remain subject to the social security distinction. legislation of the first State subject to any condition other than that concerning the duration of the work.

55. It is true that, in accordance with Community law does not have any bearing A r t i c l e 1 3 ( 2 ) ( b ) of R e g u l a t i o n on the conditions which each Member No 1408/71, a person who is self-employed State lays down in respect of the affiliation in the territory of a Member State is subject to a particular social security scheme of to the legislation of that State and that, persons performing economic activities in once the legislation applicable has been its territory. However, where the competent determined, it alone will apply to that institution of a Member State applies a person until such time as his situation provision of Regulation No 1408/71, such changes. as Article 14a(l)(a), it is exercising a power vested in it under Community law in so far as it is acting in its capacity as an institution capable of recognising the person con- cerned as holding a right under the regula- tion. It therefore has an obligation to verify that the conditions laid down by that provision are met before recognising his right to remain subject to its legislation for the duration of the work he intends to perform in another Member State. However, in order to work in another Member State and in so doing enjoy the advantages described, as provided for in Article 14a(l)(a), the person concerned is also required to be 'normally' self- employed in one of the Member States. It seems clear to me that that condition is not fulfilled by a person who joins the social 57. When should the conditions for the security scheme for self-employed persons applicability of Article 14a(l)(a) be regar- one day and then on the following day applies for a Form E 101 certificate in order to go and work in another country under 31 — Case 29/88 Schmitt v Bundesversicherungsanstalt für Angestellte [1989] ECR 581, and Case C-297/92 INPS v cover thereof. Bagliori [1993] ECR I-5211, paragraph 13.

ded as having been met? In my opinion, work to overrun. The duration of the there are several such conditions: work must therefore have been calcu- lated beforehand and must appear on the certificate. — The first is that the activity as a self- employed person which gives rise to affiliation to the relevant social security — The fourth is that it must indeed be [a scheme must be the activity which that unit of] work; this precludes the per- person 'normally' pursues; this should formance of several jobs in succession, automatically preclude affiliations of whether for the same beneficiary or for convenience. several; this, in my opinion, would require the issue of separate certifi- cates. — The second is that the person con- cerned must move to the territory of another Member State in order to — The fifth is implicit in the provision 'perform [a unit of] work'. [Transla- and requires the person concerned to tor's note: Unlike the Spanish text of maintain the infrastructure necessary the provision, which has '... realiza un for him to perform his activity, how- trabajo ...' (emphasis added), the Eng- ever minimal, while working in the lish merely has '... performs work ...', other State; this will enable him, on his thus not conveying, as the indefinite return, to carry on his activity nor- article 'un' in the Spanish does, the idea mally. of a 'unit' of work. It is on this idea that the Advocate General bases his argument here. The words in square 58. On comparing the requirements applic- brackets in English have been inserted able to the various types of worker, I note to make this clear]. The provision does that, although Article 14(1)(a) of Regula- not speak of going 'to work' or 'pur- tion No 1408/71 makes recognition of the sing an economic activity'; nor does it right of an employed person posted to use any of the other expressions that another Member State to remain subject to might be conceivable. Performing [a the social security legislation of the first unit of] work means carrying out a State conditional on the work which he particular, specified job the content of intends to perform being for the under- which is defined in advance and evi- taking which employs him, it does not dence of which can be provided, as it require him to have been normally was by the plaintiffs in the main employed in the first State before being proceedings, in the form of the relevant sent to the second. Workers engaged in the contracts. Member State in which the undertaking has its registered office or a branch with a view to being sent to another Member State fall — The third, which is linked to the into this category. 32 What matters most in second, is that the anticipated duration the case of employed persons is that they of the work must not exceed 12 months, which period may be extended by no more than a further 12 months if 32 — This situation was clarified by the Court of Justice in the judgments in Wan der Vecht and Manpower, cited in unforeseeable circumstances cause the footnote 24 above.

59. On the other hand, a person who is self-employed in one Member State and 60. On the basis of the above reasoning, I who moves to another Member State in suggest that the Court's answer to the order to perform work there is required by national court should be that the term Article 14a(1)(a) to be normally self- 'work' in Article 14a(1)(a) of Regulation employed in the first State in order to be No 1408/71 refers to the pursuit of any able to remain subject to its social security economic activity, and the fact that the legislation. What matters most in the case social security legislation of the Member of persons who are self-employed is that State in which the work is performed they should be normally self-employed in a regards it as employment or self-employ- Member State. I wish to emphasise that ment has no bearing on the application of compliance with that requirement and the that provision. fact that the posting is for the purpose of performing a particular [unit of] work of predetermined duration mean that, during that period, the worker must maintain the organisational infrastructure necessary for him to pursue his activity in his country of origin, as it would otherwise be difficult for B. The second question him, on completion of the work in the other Member State, to return to being normally self-employed. 61. By its second question, the national court essentially seeks to ascertain how it must be determined whether a person is employed in one Member State and simul- taneously self-employed in another Mem- ber State, as provided for in Article 14c of By organisational infrastructure I have in Regulation No 1408/71. mind, for example, without intending this to be an exhaustive list, offices, payment of social security contributions, payment of taxes, both direct and in respect of profes- sional or trade activities, possession of a business card and VAT number, as well as 62. The plaintiffs maintain that, in order registration with chambers of commerce for Article 14c to be applicable, a person and trade organisations and payment of the must be continuously and simultaneously corresponding membership fees, all this engaged in activities in two Member States

63. TRM considers that Article 14c gov- erns situations characterised by a degree of 66. The Netherlands Government is of the permanence, while Article 14a applies to opinion that, in order to determine whether situations of a limited duration. It therefore a person is 'simultaneously' employed and suggests that the 'simultaneous' employ- self-employed within the meaning of Arti- ment and self-employment governed by cle 14c in a number of Member States, Article 14c should be construed as meaning various factors must be taken into account that the person concerned is subject to in each particular case: whether the pursuit social security legislation in respect of the of activities in two or more countries is part activity as an employed person which he of a person's normal work pattern; whether pursues in the territory of one or more those activities are pursued on a regular Member States for a period the anticipated basis; and whether they are genuine activ- duration of which exceeds 12 months, and ities. Applying those criteria, it reaches the is at the same time subject to social security conclusion that Article 14c of Regulation legislation in respect of the activity as a self- No 1408/71 cannot be applied to the employed person which he pursues in the plaintiffs in the main proceedings since territory of one or more Member States they worked exclusively in Belgium for the during the same period. duration of the production in which they performed and returned to their country of origin once the run had finished.

64. The French Government takes the view that a person is simultaneously employed and self-employed in two or more Member 67. The United Kingdom Government States where, by reason of his pursuit of maintains that Article 14c applies to a such employment, he is at the same time person who carries out a combination of subject to the social security legislation of work on a self-employed basis in one two or more Member States, applicable to Member State and work on an employed employed persons and self-employed per- basis in another Member State on an sons. ongoing and permanent basis.

70. Having regard to its wording, I would 72. In practice, the application of Arti- observe that the provision requires that cle 14c will be subject, first, to the person's work on an employed basis in one Member not moving within the framework of Arti- State and work on a self-employed basis in cle 14(1)(a) or under Article 14a(1)(a), another be simultaneous. It is, moreover, since, in both those cases, he remains the only requirement. subject to the legislation of the Member State in which he was engaged, if he is in paid employment, or to the legislation of the Member State in which he is normally self-employed, and the legislation of the Member State in which the temporary That situation, in so far as it determines the work is performed can have no bearing legislation applicable to a person who on the classification of the nature of the pursues economic activities in two or more work.

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C. The third question

74. In such circumstances, I take the view, 76. By the third question, which I think like the Commission, that the duration of should be answered as a whole, the the period of parallel or regularly alternat- national court wishes to ascertain what ing employment and self -employment is the legal effects are of the form the issue of which is provided for, in particular, by Articles 11a and 12a(7) of Regulation 33 — Cited in footnote 20 above. No 574/72, and more specifically whether 34 — See the judgment in Case C-221/95 Inasti v Hervein and that form creates or is merely declaratory Hervillter [1997] ECR I-609, cited in footnote 20 above, of rights and whether it must be recognised and the Opinion in that case which I delivered on 11 June 1996 ([1997] ECR I-611 et seq.). as having retroactive effect.

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In performance of one of the tasks with which it is charged by Article 2 of Regulation No 574/72, the Administrative Commission has produced many model forms intended to facilitate the application of Regulations No 1408/71 82. The opinion of the United Kingdom and No 574/72. The certificate concerning Government differs from that of all those the legislation applicable is model Form E who have submitted observations in these 101, which, together with several others, proceedings since it proposes that the was approved by the Administrative Com- Court's answer should be that Form E mission in Decision No 130. 35 101 is binding with respect to the social security institution of the Member State in which the work is performed and also with respect to the person who procures services in the second Member State, unless it is withdrawn by the issuing institution.

83. The Commission, for its part, contends security, their basis, their framework and that the contested form does not constitute their bounds. Those provisions, the Court irrebuttable proof vis-à-vis the institution continues, are aimed at securing freedom of of another Member State or vis-à-vis the movement for workers within the common person who has procured the worker's services. It also maintains that, although the fact that the form is issued after the 35 — Cited in footnote 10 above. work in the other Member State has 36 — Case 93/81 INAMI v Knoeller [1982] ECR 9 5 1 , paragraph

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market by enabling them inter alia to avail — the approximate duration, expressed as themselves of rights arising out of periods start and end dates, of the period in of employment completed in different which the worker will be posted or Member States. The legal significance of carry out an activity as a self-employed Form E 26 must therefore be appraised in person; such a way as not to jeopardise the effectiveness of those articles and those regulations concerning the rights of migrant workers in the field of social security. — the name and address of the under- taking for which he will be working; and

86. As I have already said, the purpose of Form E 101 is to certify which legislation is applicable and, for the purposes of this case, that form applies to the situations — the country to whose legislation the provided for in Articles 14(1)(a), 14a(1)(a) worker will remain subject, the number and 14c(1)(a). It consists of two pages, one of t h e a r t i c l e in R e g u l a t i o n to be completed by the competent institu- No 1408/71 which is applicable to the tion of the Member State to whose legisla- posting, the date on which it starts and tion the worker is subject, and the other, on the date on which it is expected to the back of the first, containing instruc- finish. tions. The information certified, to use the terminology employed in the English ver- sion of the model, is as follows:

The final section concerns the institution issuing the certificate and provides spaces for its name, its address, the date on which — the worker's status — whether he is it issued the document, the authorised employed or self-employed; person's signature and the institution's stamp.

form to the ONSS in Brussels if the worker The fact that a Member State issues the is posted to Belgium. form to a person insured under its social security scheme, and states that its legisla- tion remains applicable for the duration of the work to be performed by the person concerned in another Member State, in 88. I see from the Form E 101 certificates practice means not only that the posted included in the documents before the worker will be exempt from the duty to pay Court, which cover the move to Belgium contributions in the second State, but also by the plaintiffs in the main proceedings in that the institution of the first State order to take part in the performance of an assumes responsibility for his social secur- opera in Brussels, that they were issued and ity cover. stamped by the Department of Social Security, Overseas Branch, in Newcastle upon Tyne, which, at the material time, was the institution designated by the United Kingdom competent authority, in accor- dance with the amendment to section L(i) 89. Advocate General Lenz put forward a of Annex 10 to Regulation No 574/72 comprehensive and cogent argument con- i n t r o d u c e d by R e g u l a t i o n (EEC) cerning the intended legal effects of Form E No 2195/91. 39 Those forms specifically 101 in his Opinion in the Calle Grenzshop state that United Kingdom legislation will Andresen case; 40 it is an argument which I be applicable during the work in Belgium, fully endorse. the duration of which is also confirmed by the information contained in the plaintiffs' contracts.

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United Kingdom institution to persons who methods or adopt certain interpretations are self-employed there. when they came to apply those rules.

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ruling by the Bundessozialgericht (Federal 96. As regards the duration of the binding Social Court), which wished to ascertain effects of Form E 101, neither the provi- whether the certified statement referred to sions of Regulations No 1408/71 and in Article 84(2) of Regulation No 574/72, No 574/72 nor the decisions adopted thus applicable to employed persons who are far by the Administrative Commission unemployed and who, during their last impose any time-limit on the issue of employment, were residing in a Member certificates concerning the legislation State other than the competent State, is applicable; nor do they indicate for how binding on the institution and the courts of long the certificates are effective. another Member State. After pointing out that the certified statement is a standard form drawn up by the Administrative Commission, the acts adopted by which are incapable of having the force of law, the Court held that the competent institution of the Member State where the person con- cerned resides or, in legal proceedings, the I note, however, that the certificate states national court, remains entirely , free to that, for the period between two specific verify the content of that statement and dates, the person concerned remains subject that, consequently, the certified statement to the legislation of the Member State in issued in accordance with Article 84(2) of which he is normally self-employed, and Regulation No 574/72 does not constitute that it also contains the date on which it is irrebuttable proof vis-à-vis either the insti- issued. Since it is a declaration in respect of tution of another Member State which is a specified period, I see no reason to regard competent in matters relating to unemploy- its effects as being limited in time, in the ment or the courts of that State. sense that it ceases to be valid once that period has expired.

occupation pursued in the State other than 98. I therefore propose that the Court's the competent State by the worker referred answer to the third question should be that to inter alia in Article 14a(1)(a) of Regula- Form E 101 has only declaratory effect but tion No 1408/71. carries with it a presumption of validity iurus tantum with respect to the facts certified therein, and is binding on the competent institution of the Member State to which the worker moves in order to perform temporary work. The person who has procured the worker's services may be bound by that form only in so far as his national social security legislation desig- nates him as the competent institution for In so far as that certificate is issued when the purposes of that particular case. As the the work has already commenced, or even provisions examined do not impose any after it has come to an end if it is of very time-limit on the issue of Form E 101, or short duration, it will be intended to have indicate for how long it is to be effective, retroactive effect in respect of the period to there is. no reason to limit its period of which it relates. validity or to deny it its retroactive effect.

Conclusion

99. In the light of the foregoing considerations, I suggest that the Court's answers to the questions referred by the Tribunal du Travail, Brussels, should be as follows:

(1) The term 'work' in Article 14a(1)(a) of Regulation (EEC) N o 1408/71 of the Council 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, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983, in turn amended by Council Regulation (EEC) N o 3811/86 of 11 December 1986, refers to the pursuit of any economic activity. The fact that the social security legislation of the

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