C-404/98
ECLI:EU:C:2000:325
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PLUM
OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 June 2000 *
1. In the present case, the Bundesgerichts- applicable is determined according to Title hof (Federal Court of Justice) asks, essen- II (Articles 13 to 17a) of the regulation. tially, whether a construction company which is registered in one Member State and maintains an office there, but carries out all its building works in a different 3. The general rule provided in Regulation Member State, may benefit from Arti- No 1408/71 concerning the determination cle 14(1)(a) of R e g u l a t i o n (EEC) of the social security legislation applicable No 1408/71* ('the posted workers rule'). to migrant workers is contained in Arti- The answer to that question is, as explained cle 13(2)(a). Article 13(2) provides as fol- below, readily apparent from the Court's lows: ruling in Fitzwilliam which was given after the reference in the present case was made. 2 'Subject to the provisions of Articles 14 to 17:
(a) a person employed in the territory of one Member State shall be subject to The Community provisions the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated 2. Article 13(1) of Regulation No 1408/71 in the territory of another Member lays down the general rule that persons to State. whom that regulation applies are to be subject to the social security legislation of a single Member State only. The legislation
* Original language: English. 1 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their 4. Thus the legislation applicable is nor- families moving within the Community, in the version mally that of the State of employment. enacted by Council Regulation (EEC) No 2001/83, OJ 1983 L 230, p. 6, Annex L However, Article 14 establishes 'special 2 — Case C-202/97 fitzwilliam Executive Search v Bestuur van rules applicable to persons, other than het Landelijk Instituut Sociale Verzekeringen, judgment of 10 February 2000 ECR I-883. mariners, engaged in paid employment'.
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Paragraph 1(a) of that Article, which is at 6. According to the order for reference, issue in the present case, lays down rules Senator was founded to meet the increasing for posted workers. It provides as follows: competition, on the German market, from construction companies based in the Neth- erlands where the cost of labour and social security contributions is lower than in Germany. Senator received all its orders from Mr Plum's two German companies 'A person employed in the territory of a and executed all its building projects in Member State by an undertaking to which Germany, using for that purpose its own he is normally attached who is posted by employees, some of whom were resident in that undertaking to the territory of another the Netherlands and some in Germany. All Member State to perform work there for of the building projects carried out by that undertaking shall continue to be Senator were of less than 12 months' subject to the legislation of the first Mem- duration. ber State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting.'
7. Senator's office in Heerlen was occupied by one person, a manager of the company who leased the business premises. He received phone calls and written correspon- dence which he dealt with himself or passed The facts on to Mr Plum in Germany. Job interviews were also conducted at the office in Heer- len, and the books of the company were kept there. 5. Mr Josef Plum is the owner of two construction companies, Plum Bauträger- und Bauunternehmung GmbH and Plum Bauunternehmung GmbH. Those compa- nies are incorporated under German law and have their headquarters in the German town of Geilenkirchen. In 1989 Mr Plum founded a third company, Aannemersbe- 8. From 1989 until February 1993 Senator drijf 3 B3 Senator BV (hereinafter 'Sena- paid social insurance contributions to the tor'). That company was incorporated respondent in the main action, the Allge- under Netherlands law and had, until it meine Ortskrankenkasse Rheinland, Regio- stopped trading at the end of 1994, its naldirektion Köln (hereinafter 'AOK'). headquarters in the town of Heerlen in the However, after the Netherlands finance Netherlands. authorities had requested payment of social security contributions from Senator in February 1993, it ceased its payments to 3 — 'Firm of building contractors'. AOK.
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9. In the main action, AOK seeks an order State and in the past has performed for payment against Mr Plum for outstand- them exclusively in the latter Member ing social security contributions for the State (in this case, the carrying out of period from March 1993 until April 1994. building projects in Germany) a person The total claim is of DEM 100 430.32 plus employed in the territory of the first interest. That claim is based on a personal Member State (Article 13(2)(a) of Reg- guarantee, given by Mr Plum to AOK on ulation No 1408/71 in the version of 30 June 1989, in respect of all liabilities 2 June 1983, OJ 1983 L 230, p. 8 et incurred by Senator. seq.)?
(2) If Question 1 is to be answered in the 10. The lower German courts found for affirmative, is there a "posting" within AOK, and Mr Plum appealed to the the meaning of Article 14(1)(a) of Bundesgerichtshof contending that Senator Regulation No 1408/71 where a build- was not liable towards AOK, because its ing contractor with its registered office activities were subject to Netherlands in a Member State employs its employ- rather than German social insurance legis- ees primarily on building projects in lation under Article 14(1)(a) of Regulation another Member State and has No 1408/71. AOK contests that interpreta- employed them exclusively there in tion of the Regulation. the past over a number of years but the anticipated duration of each indi- vidual building project does not exceed 12 months?'
11. Faced with these arguments, the Bun- desgerichtshof decided to stay the main proceedings and to refer the following questions to the Court of Justice for a 12. Written submissions have been submit- preliminary ruling: ted by AOK, the Belgian, French, German, Liechtenstein, Netherlands, and Portuguese Governments and by the Commission.
'(1) Is a person who is employed by an undertaking (a company in the form of a Besloten Vennootschap (private lim- ited company) incorporated under Analysis Netherlands law) which has its regis- tered office in a Member State (the Netherlands) and maintains an office there but performs its activities primar- 13. In its first question, the referring court ily in the territory of another Member asks essentially whether an undertaking
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which has its registered office in a Member account when deciding whether an under- State (the Netherlands) and maintains an taking is carrying on habitual and signifi- office there, but performs its activities cant activities in a Member State. 9 primarily in the territory of another Mem- ber State (Germany), using for that purpose its own employees, may benefit from the posted workers rule in Article 14(1)(a) of Regulation No 1408/71. 15. It is common ground that the employ- ees of Senator were under the authority of that undertaking while working in Ger- many. The first condition for the applica- tion of Article 14(1)(a) is therefore ful- filled.
14. In answering that question, guidance may be sought in the judgment of the Court of Justice in Fitzwilliam. 4In that case, the Court was called upon to decide whether, 16. It is however, in my view, clear that the and in what circumstances, employment second condition is not fulfilled. Senator agencies which provide personnel in more maintained an office in the Netherlands, than one Member State may benefit from where correspondence was dealt with and Article 14(1)(a). The Court held that Arti- interviews conducted by a single employee. cle 14(1)(a) constitutes an exception to the As all of those who have submitted written general rule laid down in Article 13(2)(a) observations point out, that does not that a worker shall be subject to the amount to a significant activity in the State legislation of the State of employment. 5 of establishment. Indeed, if the presence of For undertakings to benefit from that an office, through which correspondence is exception, at least two conditions must be processed and at which job interviews are fulfilled. First, there must be a direct link conducted, were sufficient for the purpose between the undertaking and the posted of Article 14(1)(a), that provision would be worker. This means that the worker must open to serious abuse by undertakings be under the authority of that undertak- seeking to evade the more onerous social ing. 6 Secondly, the undertaking must nor- insurance legislation of certain Member mally carry on its activities within the State States. where it is registered. 7 This means that the undertaking must habitually carry on sig- nificant activities in that State. 8 As regards employment agencies, the Court laid down a list of criteria which must be taken into 17. It follows that those employees of Senator who worked on building projects 4 — Case C-202/97, cited in note 2. in Germany are to be considered as subject 5 — Paragraph 30 of the judgment. 6 — Paragraph 24. 7 — Paragraph 33. 8 — Paragraph 40. 9 — Paragraphs 43 and 44.
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to German legislation under Arti- what criteria might, in other circumstances, cle 13(2)(a) of Regulation No 1408/71. be relevant for deciding whether an under- taking which is not an employment agency is habitually carrying out a significant activity in a Member State. Nor is it 18. In the light of the above, it is not necessary to examine the second question necessary for me to express an opinion on referred by the Bundesgerichtshof.
Conclusion
19. I accordingly conclude that the Court should answer the national court as follows:
A person who carries out work in a Member State (Germany) as employee of an undertaking which has its registered office in another Member State (the Netherlands) and maintains an office there but performs its activities primarily in the territory of the first Member State (Germany) and does not carry out significant activities in the second Member State (the Netherlands) is subject to the legislation of the first Member State (Germany) under Article 13(2)(a) of Regulation N o 1408/71.
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