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O P I N I O N OF ADVOCATE GENERAL JACOBS delivered on 5 April 2 0 0 1 1

1. In these joined proceedings, a sequel to security legislation of both States are com- the judgments in Inasti v Hervein and patible with the Treaty. Hervillier (hereinafter: 'Hervein I') 2 and De Jaeck v Staatssecretaris van Financiën (hereinafter: 'De Jaeck'), 3the Tribunal du Travail (Labour Court), Tournai, Belgium, requests a preliminary ruling on whether Article 14c(1)(b) of and Annex VII to Regulation (EEC) No 1 4 0 8 / 7 1 , 4 as a m e n d e d by R e g u l a t i o n ( E E C ) The relevant legislative provisions No 1390/81 5 and Regulation (EEC) No 2 0 0 1 / 8 3 , 6 are compatible with Articles 48 and 52 of the EC Treaty (now, after amendment, Articles 39 and 43 EC).

Regulation No 1408/71 as amended and updated by Regulation No 2001/83

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ject to the legislation of only one Member 7. Under Article 14f — which was State at a time (hereinafter: 'the single State inserted recently into the Regulation by principle'). Thus, Article 13(1) 7provides Council Regulation No 1606/98 1 1— civil that: servants who are simultaneously employed in two or more Member States are subject to the legislation of each of those Member States. That provision is not in issue in the present case. 'Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.'

8. More importantly for present purposes, under Article 14c(1)(b), persons who are simultaneously employed in one Member 5. The single State principle applies to State and self-employed in another are persons who are employed in more than subject to the legislation of both Member one Member State; 8 to persons who are States. Article 14c was inserted into the self-employed in more than one Member Regulation by Regulation No 1390/81 State; 9and to persons who are employed in which first extended the scope of the one Member State and self-employed in Regulation to the self-employed and which another Member State. 10 entered into force on 1 July 1982. In its original form, Article 14c read as follows:

(a) to the legislation of the Member State 'A person who is simultaneously employed in the territory of which he is engaged in the territory of one Member State and in paid employment, subject to sub- self-employed in the territory of another paragraph (b); Member State shall be subject:

(b) in the instances referred to in Annex (a) save as otherwise provided in subpara- VII, to the legislation of each of these graph (b) to the legislation of the Member States, as regards the activity Member State in the territory of which pursued in its territory. he is engaged in paid employment or, where he pursues such an activity in the territory of two or more Member States, to the legislation determined in accordance with Article 14(2) or (3);

2. The detailed rules for implementing subparagraph (b) of paragraph 1 shall be laid down in a Regulation to be adopted by the Council on a proposal from the Com- mission.' (b) in the cases mentioned in Annex VII:

9. Article 14c was amended by Council Regulation No 3811/86 12 to take account — to the legislation of the Member of situations where more than two activ- State in the territory of which he is ities in a combination of paid employment engaged in paid employment, that and self-employment are carried out in the legislation having been determined territory of two or more Member States. in accordance with the provisions After Regulation No 3811/86 took effect of Article 14(2) or (3), where he pursues such an activity in the territory of two or more Member 12 — Cited in note 10. States,

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2. Where a person resident in Denmark is 13. Annex VII has been amended a number self-employed in Denmark and gainfully of times: employed in any other Member State.

— Council Regulation No 2000/83 15 replaced point 3 by the following:

3. Where he is self-employed in farming in Germany and gainfully employed in any other Member State. '3. For the agricultural accident insurance scheme and the old-age insurance scheme for farmers: where he is self-employed in farming in Germany and gainfully employed in any other Member State'.

4. Where he is self-employed in France and gainfully employed in any other Member State except Luxembourg. — Council Regulation No 1660/85 16 replaced point 6 by the following:

7. For the pension insurance scheme for self-employed persons: where he is self- employed in Greece and gainfully 2. Where a person resident in Denmark is employed in any other Member State. self-employed in Denmark and gainfully employed in any other Member State.

8. Where he is self-employed in Italy and 3. For the agricultural accident insurance gainfully employed in any other Member scheme and the old-age insurance scheme State. for farmers: where he is self-employed in farming in Germany and gainfully employed in any other Member State.

9. Where a person is self-employed in Austria and gainfully employed in any 4. Where a person resident in Spain is other Member State. self-employed in Spain and gainfully employed in any other Member State.

17 — Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, 10. Where he is self-employed in Portugal Annex I — List referred to in Article 29 of the Act of Accession — IV. Social policy — A. Social security. and gainfully employed in any other OJ 1994 C 241, p. 61. Member State. I - 2838

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11. Where a person resident in Finland is n o t c o n t a i n an e q u i v a l e n t to self-employed in Finland and gainfully Article 14c(1)(b) and Annex VII; the single employed in any other Member State. State principle applies to all persons who are employed in one Member State and self-employed in another Member State. 21

14. It may be added that the Commission has recently put forward a proposal for a 16. Article 9 contains rules applicable in new regulation intended to replace Regu- the case of overlapping of rights to death lation No 1408/71. 20 That proposal does grants under the legislations of two or more Member States. The effect of paragraphs 1 and 2 of that provision is that employed 18 — Council Regulation (EC) No 3096/95 of 22 December and self-employed persons, and their 1995 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed per- families, can claim death grants only in sons, to self-employed persons and to members of their families moving within the Community and Regulation one Member State. (EEC) No 574/72 laying down the procedure for imple- menting Regulation (EEC) No 1408/71, OJ 1995 L 335, p. 10. 19 — Council Regulation (EC) No 1399/1999 of 29 April 1999 21 — Articles 8(1) and 10(3) of the Proposal. See further the amending Regulation (EEC) No 1408/71 on the appli- Commission's explanatory memorandum COM(1998) cation of social security schemes to employed persons, to 779 final, p. 4. self- employed persons and to members of their families 22 — Regulation (EEC) No 574/72 of the Council of 21 March moving within the Community and Regulation (EEC) 1972 fixing the procedure for implementing Regulation No 574/72 laying down the procedure for implementing (EEC) No 1408/71 on the application of social security Regulation (EEC) No 1408/71, OJ 1999 L 164, p. 1. schemes to employed persons and their families moving 20 — Proposal for a Council Regulation (EC) on coordination of within the Community, OJ English special edition 1972 (I), social security systems, COM(1998) 779 final, OJ 1999 p. 159, as amended and updated by Council Regulation C 38, p. 10. (EEC) No 2001/83, cited in note 6.

Case C-393/99 Inasti v Hervein and Her- villier SA (Hervein II)

19. After amendment, Article 9(3) pro- vides, by way of derogation from Article 9(1) and 9(2), that persons who 21. The first defendant in the main pro- are or have been subject to the legislation of ceedings in Case C-393/99, Claude Her- two Member States under Article 14c(1)(b) vein, is a French national resident in of the Regulation retain rights to death France. Until 6 October 1986, he was grants acquired under the legislation of simultaneously chairman/director general each of those States. Article 15(1)(a) pro- and director or assistant director of Étab- vides that overlapping periods of social lissements Hervillier SA, Laines Anny Blatt insurance must be aggregated where those SA and Berger du Nord SA, companies periods have been completed by a person established in France and in Belgium. I - 2840

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26. Persons who exercise a secondary 23. By contrast, company directors are activity in self-employment are divided into under Belgian social security law con- two categories. sidered to be self-employed persons. 23 Directors are thus subject, under Article 10 of the Royal Decree No 38 of 27 July 1967. 24 to compulsory affiliation to the Belgian social security scheme for self-em- ployed persons. 27. The first category (hereinafter: 'Cat- egory I') consists of persons whose annual earnings from their activity in self-employ- ment fall below a certain level fixed in the relevant rules (hereinafter: 'the full rate 24. The level of contributions under that level'). 26Persons in this category pay social scheme is determined by Article 12 of security contributions calculated as a per- Royal Decree No 38 and by the more centage of their net income from self-em- detailed rules laid down in Articles 35 and ployment. However, the rate is lower than 36 of the Royal Decree of 19 December that applicable to persons whose primary 1967. 25 Those provisions distinguish professional activity is in self-employment between persons whose primary profes- and there is no minimum annual contribu- sional activity is in self-employment (tra- tion. vailleurs indépendants à titre principal) and persons who exercise a secondary activity in self-employment (travailleurs indépen- dants à titre complémentaire). 28. Persons in Category I are not entitled to 23 — There is no agreed definition of the notion of 'self- benefits of any kind under the social employed person' in the legal systems of the Member States. See P. Schoukens, 'La définition du travail indé- pendant dans une approche comparative européenne', Revue Belge de sécurité sociale, 1998, 769. 26 — It appears from documents supplied by Inasti that this 24 — Moniteur Belge of 29 July 1967. amount was BEF 150 311 until 1997 and that it has since 25 — Moniteur Belge of 28 December 1967. then been BEF 152 777.

33. Inasti argued that Mr Hervein was simultaneously self-employed in Belgium and employed in France, and that he was therefore subject to the social security 30. Persons in Category II are entitled to legislation of both Member States under certain social benefits under the scheme for Article 14c(1)(b) of and Annex VII to the the self-employed. According to infor- Regulation. mation provided by Inasti, those benefits include retirement pensions, death pay- ments, medical cover in respect of major risks, invalidity benefits and child benefits, but not payments in case of bankruptcy. 34. Mr Hervein and Hervillier SA resisted that claim. They contended that although Mr Hervein was treated in France as an employee for the purposes of social security cover, he did not pursue paid employment 31. It appears from the file that Mr Her- there. He effectively carried out the same vein's earnings in Belgium exceeded the full activity as a self-employed person in France rate level, and that he was therefore liable and in Belgium. Article 14a(2) of the

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Regulation should therefore be applied 37. Inasti commenced legal proceedings on with the result that Mr Hervein was subject 27 December 1993 against Mr Lorthiois only to the legislation of the Member State and Comtexbel SA for the payment of in which he resided, that is to say the BEF 103 527 in social security contribu- French legislation. tions claimed for the period 1 January 1987 to 31 December 1988.

Case C-394/99 Inasti v Lorthiois and Comtexbel SA 38. The arguments put forward by Inasti and the defendants in this case are identical to those presented in the case of Hervein II. 35. The facts of this case are similar to — but in at least one important respect different from — those of the case of Hervein and Hervillier SA. The defendant, Guy Lorthiois, is a French national resident in France. He is director, chairman of the board of directors and managing director of Comtexbel France, a company estab- The reference, Opinion and judgment in lished in France. At the same time, he is the Hervein I Chairman of the board of directors of Comtexbel SA in Mouscron, Belgium.

The questions referred in the present pro- ceedings 41. That answer was in accordance with the Opinion of Advocate General Ruiz-Jarabo Colomer, who had considered that it was not possible to elicit a Commu- nity definition of employed and self-em- ployed person from the provisions of the 43. Following the Court's judgment in Regulation. Hervein I, the proceedings in Inasti v Hervein and Hervillier SA were recom- menced before the Tribunal du travail de Tournai.

42. In contrast to the Advocate General, however, the Court of Justice did not examine the validity of Article 14c(1)(b) of and Annex VII to the Regulation. Although the parties in the main proceed- 44. Relying on the judgment of the Court ings and the referring court had not ques- of Justice, Inasti argued that it was clear tioned the validity of those provisions, the that Mr Hervillier and — in the case of Advocate General considered that the Inasti v Lorthiois and Comtexbel SA — Court should examine their compatibility Mr Lorthiois were subject to Belgian social security legislation in so far as company directors are under French social security law treated as employees and under Belgian 27 — See also De Jaeck, cited in note 3, paragraph 34 of the judgment. law as self-employed persons.

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45. The defendants challenged that claim. 2. Can that invalidity be relied on to call Relying on the Opinion of Advocate Gen- into question affiliation and the con- eral Ruiz-Jarabo Colomer in Hervein I, tributions payable in application of the they argued that Article 14c(1)(b) and provisions found to be invalid for Annex VII were contrary to Articles 48 periods which predate delivery of the and 52 of the Treaty. judgment finding them to be invalid and, if not, is there an exception as regards workers or persons entitled under them who have already brought legal proceedings or made an equival- ent claim under national law before that date?'

'1. Are Article 14c(1)(b) of Council Regu- lation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self- Admissibility employed persons and to members of their families moving within the Com- munity, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, and Annex VII to 48. Inasti, the Belgian Government and the Regulation No 1408/71 to be declared Council consider the references from the invalid in the light of Articles 48 and Tribunal du travail de Tournai to be 52 of the Treaty inasmuch as they inadmissible. In their view, the Court of provide that persons who pursue an Justice implicitly but conclusively accepted activity as employees in one Member the validity of Article 14c(1)(b) of and State and an activity as self-employed Annex VII to the Regulation in its judg- persons in another Member State are ment in Hervein I in so far as it interpreted subject to the legislation of both those the meaning of those provisions without Member States? questioning their validity. In those circum-

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stances, the Tribunal du travail de Tournai of the provisions, that would not have was not entitled to refer the question of the precluded the Court from re-examining validity of Article 14c(1)(b) and Annex VII their validity in the light of further argu- to the Court, since that amounted to an ment in a later case. attempt to obtain a review of the Court's judgment in Hervein I contrary to the division of competences laid down in Article 177 of the EC Treaty (now, after amendment, Article 234 EC). 28

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54. In order to answer the question referred occasions, to prevent the simultaneous by the Tribunal du travail de Tournai, two application of a number of national legis- issues must be considered. First, it must be lative systems and the complications which examined whether Article 14c(1)(b) of and might ensue and to ensure that the persons Annex VII to the Regulation restrict free- covered by the Regulation are not left dom of movement for workers and freedom without social cover. 30 of establishment. Secondly, and in case of an affirmative reply to the first question, it falls to be c o n s i d e r e d w h e t h e r Article 14c(1)(b) of and Annex VII to the Regulation should be declared invalid. 57. Article 14c(1)(b) provides, for the situ- ations listed in Annex VII, exceptions to that system. Under those provisions, a person who is simultaneously employed in one Member State and self-employed in another Member State is subject to the legislation of both States. It follows that such a person may be required to be affiliated and make contributions to the Do Article 14c(1)(b) of and Annex VII to social security systems of both States. In the the Regulation restrict freedom of move- first State, the person is liable to contribute ment for workers and freedom of establish - in respect of his income from employment mentì in that State. In the second State, the person can be required to contribute in respect of his income from self-employment in that State.

59. That argument is, in my view, uncon- preclude measures which place nationals of vincing. one Member State at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. Measures which deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an 60. It is true that persons falling within obstacle to that freedom even if they apply Article 14c(1)(b) cannot be required to without regard to the nationality of the contribute in respect of the same income workers concerned. in several Member States. 31 The fact that the phrase 'as regards the activity pursued in its territory' was removed from the wording of Article 14c(1)(b) when that provision was amended by Regulation No 3811/86 does not, in my view, affect the substantive meaning of that provi- sion. 32 I do not, however, agree with the Commission and the Council that the 62. With regard to social security in par- simultaneous application of the legislation ticular, the Court held in Kemmler 34 that of several Member States in respect of the '[législation of a Member State which separate incomes earned in each of those requires contributions to be made to the Member States is incapable of restricting scheme for self-employed persons by per- freedom of movement for persons. sons already working as self-employed persons in another Member State where they have their habitual residence and are affiliated to a social security scheme inhibits the pursuit of occupational activ- ities outside the territory of that Member State'. 35 That judgment, and the Court's

Those provisions therefore where that person resides in the other Member State and is affiliated to its national social security scheme, because 31 — See similarly the Opinion of Advocate General Ruiz-Jarabo Colomer in De Jaeck, cited in note 3, at paragraphs 43 and 44. 32 — See however the doubts expressed by Advocate General 34 — Case C-53/95, cited in note 33. Ruiz-Jarabo Colomer in his Opinion in Hervein 1, cited in 35 — Paragraph 12 of the judgment. See also the judgment of note 2, at paragraph 50. 8 March 2001 in Case C-68/99 Commission v Germany, 33 — See, in particular Case 143/87 Stanton [1988] ECR 3877, ECR I-1865, paragraph 45. paragraph 13 of the judgment; Case C-53/95 Kemmler 36 — Case 92/63 Nonnenmacher [1964] ECR 281; Case 19/67 [1996] ECR I-703, paragraph 11; and, more recently, Case Van der Vecht [1967] ECR 345; Stanton, cited in note 33; C-18/95 Terhoeve [1999] ECR I-345, paragraphs 37 to 39; Joined Cases 154/87 and 155/87 Wolf [1988] ECR 3897. Case C-302/98 Sehrer [2000] ECR I-4585, paragraphs 32 For a summary of that case-law, see the Opinion of and 33; Case C-190/98 Graf [2000] ECR I-493, para- Advocate General Ruiz-Jarabo Colomer in Hervein I, cited graphs 21 and 23. in note 2, paragraphs 32 to 37.

that would have adverse effects on the is self-employed, as if he pursued his paid pursuit of occupational activities outside employment in the territory of that the territory of that Member State. Member State. A provision so worded will prevent an increase in social charges from arising only where the legislation of the Member State of self-employment exempts high incomes from social charges to at least the same extent as the legislation of the Member State of employment. Indeed, it is possible that when it comes to applying the 63. However, that is precisely the effect of legislation of the State of self-employment, Article 14c(1)(b) of the Regulation. Even Article 14d(2) may have the effect of if — as the Commission and the Council increasing, rather than reducing, the rate stress — Article 14c(1)(b) does not lead to of contribution. 37 a complete duplication of social charges, that provision may none the less effect a substantial increase in social charges for the persons concerned. Under the legislation of certain Member States, earnings which exceed a certain level are either exempt from or subject to reduced rates of social contributions. Persons who — under Article 14c(1)(b) — are liable to pay sep- arate contributions in several Member States are less likely to benefit from such 65. In any event, a requirement of affili- rules than persons who — under the single ation to the social security system of more State principle — pay all of their contribu- than one Member State is, in my view, tions in a single Member State. capable of inhibiting free movement even if it does not in practice increase the level of contributions. The social security legis- lations of most Member States are highly complex, and there are large differences between the rules which apply in different States. A person who contemplates whether to exercise free movement rights is there- 64. The new paragraph 2 of Article 14d, fore likely to find it difficult to ascertain the which was introduced by Regulation financial implications of affiliation to the No 3811/86, does not — contrary to what social security system of another Member the Commission, the Council and Inasti State. It must be remembered that such a suggested at the hearing — protect person will often be making enquiries from migrant workers effectively against such the territory of the State in which he is adverse financial consequences. resident and that he may face linguistic Article 14d(2) provides that a person difficulties. Some workers and self-em- covered by Article 14c(1)(b) is to be ployed persons will consider that to be a treated, for the purpose of determining the rates of contributions to be charged to self-employed persons under the legislation 37 — See similarly the Opinion of Advocate General Ruiz-Jarabo Colomer in Hervein I, cited in note 2, at of the Member State in whose territory he paragraph 50.

70. The Commission and the Council point out, correctly in my view, that by adopting Regulation No 1390/81 (which inserted 68. It does not follow from that case-law, however, that all provisions of Community 40 — Pinna, cited in note 39, paragraph 20 of the judgment; law which restrict freedom of movement to Case C-266/95 Merino García [1997] ECR I-3279, para- graph 27; Hervein I, cited in note 2, paragraph 16. some extent are to be declared invalid. 41 — Vougioukas, cited in note 39, paragraph 35 of the judgment; Case C-360/97 Nijhuis [1999] ECR I-1919, paragraph 30. See also, in the context of measures based on Article 57(2) of the EC Treaty, Luxembourg v Parlia- 38 -— See Case C-168/98 Luxembourg v Parliament and Coun- ment and Council, cited in note 38, paragraph 32. cil, judgment of 7 November 2000, paragraph 23. 42 — Vougioukas, cited in note 39, paragraphs 32 to 35 of the 39 — See Case 41/84 Pinna [1986] ECR 1, paragraph 24 of the judgment. judgment; Case C-143/93 Vougioukas [1995] ECR I-4033, 43 — Case 19/76 Triebes [1976] ECR 1243, paragraph 18 of the paragraph 30. judgment.

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Articles 14c and 14d into the Regulation) Regulation No 1390/81 why the Commu- the Community legislator achieved a degree nity legislator considered exceptions to be of coordination. While persons who fall necessary or why the particular situations within Article 14c(1)(b) are liable to con- listed in Annex VII were selected for special tribute in more than one Member State, the treatment. 44 contributions owed in each State are based exclusively on the income which is earned in each of those States. The insertion of Article 14c(1)(b) thus removed the risk, which existed prior to the adoption of Regulation No 1390/81, of a complete duplication of liabilities in respect of the same periods, risks and incomes in several Member States.

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74. The anomalous nature of the excep- 77. The minutes of the meetings held tions contained in Article 14c(1)(b) and between the Belgian and French Govern- Annex VII is p a r t i c u l a r l y striking ments on 25 and 26 January 1956 stipulate where — as in the case of Mr Hervein under point E.I.) that '... if a person is and Mr Lorthiois — they are applied to a considered as an employee in France and as single professional activity which is cat- a self-employed person in Belgium, but as a egorised differently under laws of the matter of Belgian law the two functions Member States concerned. In such circum- carried out by that person constitute a stances, Article 14c(1)(b) creates an artifi- single professional activity, only French cial difference between employed and self- [social security] law is applicable. That is employed persons contrary to the purpose in particular the case for a director of a of Regulation No 1390/81. company in France who is simultaneously... (administrateur) of Belgian branches of the same company'. Contrary to what Inasti suggests, it follows from that wording, as well as from the case-law of the Belgian courts, 48 that persons working simulta- neously as company directors of French companies in France and as directors of 75. Moreover, and perhaps more import- branches of those companies in Belgium antly, it appears that Article 14c(1)(b) and were not required to be affiliated to the Annex VII created, for certain classes of Belgian social security scheme for the self- persons, restrictions on the freedom of employed. movement for workers and the freedom of establishment which did not previously exist under national law.

79. The difficulties which those persons VII cannot be justified on the grounds that encounter are exacerbated by the fact that those provisions provided a degree of Belgian law requires persons who pursue coordination and hence a (small) improve- self-employment as a secondary activity (à ment for free movement of persons com- titre complémentaire) to contribute, pared to the rules of national law existing although it affords those persons social prior to the adoption of Regulation cover only where their annual earnings in No 1390/81. Belgium exceed a certain level. 49 For example, it appears that Inasti is seeking contributions from the defendant in Case C-394/99, Mr Lorthiois, although he will not be entitled to any social benefits under that scheme owing to the fact that his earnings in Belgium did not in any year exceed the full rate level laid down in the Belgian legislation. 50 82. Inasti, the Commission, the Council and the Belgian Government argue that Article 14c(1)(b) and Annex VII are in any event justified by other considerations.

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professions or categories of self-employed 85. That argument should not, in my view, persons. In those States which do not have be accepted. a universal scheme, persons who are sim- ultaneously employed and self-employed are typically required to pay separate con- tributions in respect of both activities. The effect of Article 14c(1)(b) and Annex VII is essentially to replicate the requirement of separate contributions where a person is 86. The existence of separate social secur- simultaneously employed and self-em- ity systems for the self-employed in some ployed in different Member States. Member States is relevant in so far as those systems make it practically possible — though, as Inasti and the Greek Govern- ment pointed out at the hearing, not uncomplicated — to require separate con- tributions on incomes earned in different Member States by different professional a c t i v i t i e s in a c c o r d a n c e w i t h Article 14c(1)(b).

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discrimination. Moreover, the fact that the his income from self-employment in the application of the single State principle other Member State. That would prevent, might increase cross-border competition or at least reduce, the advantage for the is — as the Commission appeared to persons concerned in instances where the accept at the hearing — not in itself a activity in the first Member State (catego- valid justification for imposing restrictions rised as employment in that State) is on freedom of movement for persons in the categorised as self-employment in the other context of a regulation purporting to pro- Member State. For example, in the present mote free movement and social protection case the application of the single State of migrant workers. 52 principle and Article 14d(1) would enable the French social security authorities to levy contributions on the income earned by Mr Hervein and Mr Lorthiois as company directors in Belgium.

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92. It may be accepted that the Community and the same period, since the coexistence legislator has competence to adopt meas- of the two pensions to which he is entitled ures on the basis of Articles 51 and 235 of by virtue of those contributions cannot be the Treaty aimed at combating social considered unjustified. security evasion. Such measures must how- ever be proportionate to the aim sought. The requirement of double affiliation which applies under Article 14c(1)(b) of the Regulation is not, in my opinion, a proportionate measure in view of the restrictions it creates on the exercise of free movement rights.

'3. By way of derogation from paragraphs 1 and 2 in the instances referred to in Article 14c[1](b) of the Regulation, entitlement to death grants acquired under the legislation of each of the two Member States concerned referred to in Annex VII shall be retained.' 55 — Before amendment by Regulation No 3811/86, Article 15(1) of the Implementing Regulation provided 93. The third argument put forward by that 'to insurance periods completed under the legislation of one Member State shall be added insurance periods Inasti, the Belgian Government, the Com- completed under the legislation of any other Member

social cover. In that regard, the Commis- likewise take account, for the award of benefits, of the periods of insurance or of residence completed under an sion and the Council stressed in their obligatory insurance scheme under the legislation of the two Member States in question which overlap each other'. replies to questions put by the Court that 56 — Case C-31/92 [1993] ECR I-4543, paragraphs 17 to 23 of Regulation No 3811/86 amended, in par- the judgment.

96. The derogations from the single State principle, and the corollary requirement of contributions in more than one Member 98. What, then, is likely to lead to greater State, laid down in Article 14c(1)(b) could social cover: the payment of social con- however, in my view, be justified under tributions in two or more Member States in that case-law only if those derogations respect of the incomes earned in each of were intended and necessary to grant them (Article 14c(1)(b)) or the payment of additional social protection to migrant contributions in a single Member State in workers or, perhaps, if it could be shown respect of the total income earned in all the that migrant workers are inherently likely Member States concerned? The answer to to obtain greater social cover than if the that question depends entirely upon the single State principle had applied in all social security legislations of the Member instances. The fact that persons falling States. Those laws are subject to change at under Article 14c(1)(b) may become the will of the national legislators. It entitled to some benefits — such as follows that even if separate payments in invalidity benefits, old-age benefits and several Member States might at one point survivor's benefits — in each of the in time and as regards particular situations Member States where they have been com- be more beneficial for the persons con- pelled to make contributions cannot of cerned, that will far from always be the itself justify the restrictions on the free 58 — See also R. Cornelissen, 'The Self-Employed and the Coordination of Social Security in Europe', in 57 — See, in particular, Kemmler, cited in note 33, paragraphs P. Schoukens (Ed.), Social Protection of the Self-Employed 12 and 13 of the judgment. in the European Union, 1994, p. 43, at p. 51.

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102. The defendants argue that the Court sons. The judgments in De Jaeck and should not impose such a restriction on the Hervein I, in which the Court interpreted effects of its ruling in this case. Alter- Article 14c(1)(b) of the Regulation without natively they argue that the Court should examining its validity, may have increased hold that the invalidity of Article 14c(1)(b) that uncertainty to some extent. Account and Annex VII can be relied upon by must also be taken of the fact that persons who have brought legal proceed- Article 14c(1)(b) and Annex VII apply to ings or made an equivalent claim, whether a large number of persons in the Commu- as applicants or defendants, prior to the nity, and that serious financial con- Court's judgment. sequences for the social security bodies, as well as strain on the resources of the judicial systems in the Member States, c o u l d ensue if the i n v a l i d i t y of Article 14c(1)(b) could be relied upon to challenge social contributions paid or owed in respect of periods prior to the date of the Court's judgment. 103. The Court of Justice has acknowl- edged that the temporal effect of a pre- liminary ruling of invalidity can be limited on the basis of Article 174(2) of the EC Treaty (now, after a m e n d m e n t , Article 231(2) EC) where such a limitation is, exceptionally, justified by overriding considerations of legal certainty. 59

105. I therefore agree with the Greek Government and the Council that overrid- ing considerations of legal certainty mili- tate against calling in question affiliation 104. In the present case, it must be and contributions payable in application of acknowledged that the Member States Article 14c(1)(b) in respect of periods prior which, following the entry into force of to the delivery of the judgment in the Regulation No 1390/81 on 1 July 1982, present case. required persons who were already affili- ated to a scheme for employed persons in another Member State to be affiliated to their own social security schemes for self- employed persons may have been uncertain as to the precise extent of their obligations as regards freedom of movement for per-

107. In my view, the principle of effective judicial protection clearly requires that persons who have already commenced legal proceedings or made an equivalent claim in 109. Those doubts are, in my view, accordance with applicable national law unfounded. The purpose of extending the prior to the date of the Court's judgment effects of a ruling to persons who have should be able to rely on the invalidity of initiated proceedings or made an equivalent Article 14c(1)(b) and Annex VII. 61 claim is, as the Court stated in Lomas and others, 62 to protect all those persons 'who have asserted their rights in due time'. In order to fulfil that purpose, and to grant individuals effective judicial protection against the consequences of unlawful provi- sions of Community law, the phrase 'made an equivalent claim' must be taken to include situations where a person has asserted his rights by refusing to pay sums 108. The defendants are concerned that a on the grounds that the request for pay- ruling to that effect would not assist ment was contrary to Community law, individuals who, like themselves, have whilst stating that reason clearly to the attempted to protect their legal position body or authority requesting the payment by refusing to pay contributions owed and — if the body sought payment under Article 14c(1)(b) rather than by through legal proceedings — by invoking the conflict with Community law in those legal proceedings. 60 — Produits de maïs, cited in note 59, paragraph 18 of the judgment; Pinna, cited in note 39, paragraph 29. 61 — See also the Opinion of Advocate General Darmon in Case C-228/92 Roquette Frères [1994] ECR I-1445 at para- 62 — Joined Cases C-38/90 and C-151/90, cited in note 59, graph 51. paragraph 29 of the judgment.

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